Jorge Velasquez-Garcia v. Eric Holder, Jr. , 760 F.3d 571 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2610
JORGE ARGENIS VELÁSQUEZ-GARCÍA,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A 097 563 851
____________________
ARGUED FEBRUARY 10, 2014 — DECIDED JULY 23, 2014
____________________
Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and
KENDALL, District Judge. *
WOOD, Chief Judge. The Child Status Protection Act, 8
U.S.C. § 1153(h) (the Act), allows the adult children of lawful
permanent residents to maintain child status if their parent
* Honorable Virginia M. Kendall, District Judge of the United States Dis-
trict Court for the Northern District of Illinois, sitting by designation.
2 No. 13-2610
filed a visa petition on their behalf while they were still un-
der 21. This provision, enacted in 2002, prevents such chil-
dren from “aging out” of visa priority during the years in
which their petition is under review by immigration authori-
ties. But an immigrant may take advantage of this provision
only if he “sought to acquire the status of an alien lawfully
admitted for permanent residence within one year” of his
visa number becoming available. Id. § 1153(h)(1)(A).
Jorge Argenis Velásquez-García (Velásquez) is the adult
child of a lawful permanent resident. In 2005, when Velás-
quez was 17, his father filed a visa petition on his behalf. For
our purposes, Velásquez’s visa number became available in
March 2011. Although Velásquez took some steps to acquire
permanent-resident status within one year of that date, he
did not file a formal application for permanent status until
May 2012, fourteen months after his visa number became
available. Later yet, the Board of Immigration Appeals
adopted a new rule in a case called Matter of O. Vasquez; the
new rule required an immigrant to file or attempt to file a
substantially complete application for permanent status
within one year in order to satisfy the “sought to acquire”
prerequisite of 8 U.S.C. § 1153(h)(1)(A). Because Velásquez
had not done so, the Board found that he failed to meet the
requirement and ordered him removed.
Although we find the Board’s new interpretation of the
Act’s ambiguous language to be reasonable, we conclude
that retroactive application of the new one-year filing rule
works a manifest injustice in Velásquez’s case. We therefore
remand to the Board for redetermination under the statutory
interpretation in effect prior to the O. Vasquez decision.
No. 13-2610 3
I
Velásquez, born in Mexico in 1987, entered the United
States without being admitted or paroled in 1994 when he
was seven years old. In 2001, Velásquez’s father, a lawful
permanent resident, filed on his behalf a Form I-130 petition,
which seeks approval for eligible family members to apply
for an immigrant visa or adjustment of residence status.
Although properly filed, that petition was later deemed
abandoned, unbeknownst to Velásquez or his father. In 2005,
when Velásquez was 17 years old, his father filed another I-
130 petition on his behalf. That petition was approved in
2009 when Velásquez was 22 years old. Approval put
Velásquez in line to apply for permanent residence, which
he could do only when an immigrant visa number became
available to him.
Velásquez’s visa number became available on March 1,
2011 (after a period of visa “retrogression” that is irrelevant
for our purposes, see Visa Retrogression, U.S. Citizenship &
Immigration Services (June 14, 2011) http://www.uscis.gov/
green-card/green-card-processes-and-procedures/visa-
availability-priority-dates/visa-retrogression) (last visited
July 23, 2014)). About two weeks later, Velásquez visited an
attorney to inquire about his status and to inform the attor-
ney that he wanted to apply for his “green card.” A week
later, Velásquez retained the attorney to investigate his eligi-
bility for permanent residence. The attorney filed a Freedom
of Information Act (FOIA) request with the U.S. Citizenship
& Immigration Services (CIS), seeking information about
“[a]ll I-130 applications and approval notices” relating to Ve-
lásquez. Six months later, in September 2011, CIS sent the
4 No. 13-2610
attorney documents indicating that Velásquez’s first I-130
petition had been “denied due to abandonment.” The aban-
doned petition was nevertheless important because it ena-
bled Velásquez to qualify for certain amnesty provisions en-
acted in the 2006 amendments to the immigration laws. See 8
U.S.C. § 1255(i). CIS’s response did not mention that Velás-
quez had only months left to apply for permanent status be-
fore losing priority as a resident’s child.
After receiving the FOIA response, the attorney met with
Velásquez to discuss adjusting his status. But according to
the attorney, “nothing became more solid or concrete.” Ve-
lásquez later told an immigration judge that he intended to
apply for permanent status, but he was “just trying to get the
money together” to pay the myriad costs and fees associated
with changing status. No one informed either Velásquez or
his father about any filing deadline, for reasons we detail be-
low. Meanwhile, Velásquez caught the attention of immigra-
tion officials as the result of two misdemeanor infractions: a
conviction in 2007, at the age of 20, for simple possession of
marijuana, and a guilty plea in January 2012 to a charge of
driving under the influence (DUI), for which he served 15
days in county jail.
Upon his release from jail on February 15, 2012, Velás-
quez was immediately taken into immigration custody and
served with a Notice to Appear for removal proceedings.
The Notice to Appear was filed with the immigration court
on March 8. It charged that he was removable as an alien
convicted of a controlled-substance offense and as an alien
present in the country without being admitted or paroled.
Velásquez did not contest the grounds for his removability.
In late February, Velásquez’s retained counsel unsuccessfully
No. 13-2610 5
requested his release on bond. At the first hearing in immi-
gration court on April 19, the judge set a May 17 deadline for
Velásquez to file an application for permanent status. Velás-
quez filed the application on May 10, a week before the
court-imposed deadline but about fourteen months after his
visa number became available.
On June 8, 2012, more than three months after Velás-
quez’s one-year statutory deadline had passed, the Board of
Immigration Appeals decided Matter of O. Vasquez, 25 I&N
Dec. 817 (B.I.A. 2012). The Board’s decision in O. Vasquez nar-
rowly interpreted critical language in the Act—whether the
alien “sought to acquire” within one year the status of a per-
son lawfully admitted for permanent residence—to require
that an immigrant make a fully compliant application for
permanent residence or one with only technical defects with-
in one year, unless exceptional circumstances prevented the
immigrant from filing such an application. This decision de-
parted sharply from three prior non-precedential Board de-
cisions, which had required only a showing that the immi-
grant took “substantial steps” to acquire permanent status in
order to qualify for the Act’s protection. See In re Murillo, No.
A099 252 007, 2010 WL 5888675 (B.I.A. Oct. 6, 2010); In re
Castillo-Bonilla, No. A98 282 359, 2008 WL 4146759 (B.I.A.
Aug. 20, 2008); In re Ji Young Kim, No. A77 828 503, 2004 WL
3187209 (B.I.A. Dec. 20, 2004). The Eleventh Circuit (the only
court of appeals to consider these decisions) elected to fol-
low their approach in Tovar v. U.S. Att’y Gen., 646 F.3d 1300,
1304–05 (11th Cir. 2011).
II
Referring to the O. Vasquez decision, the immigration
judge determined that Velásquez failed to meet the Child
6 No. 13-2610
Status Act’s “sought to acquire” prerequisite because he did
not file an application for permanent residence during the
one-year window. On remand from the Board, the immigra-
tion judge found that Velásquez’s incarceration and pending
removal proceedings were not extraordinary circumstances
that excused his late filing. Velásquez was ordered to be re-
moved to Mexico, where he had not lived since he was seven
years old. The removal order became final on June 25, 2013,
when the Board dismissed Velásquez’s appeal. Velásquez
then petitioned for review of the order in this court.
Velásquez, along with the American Immigration Coun-
cil as amicus curiae, attacks the Board’s decision in O. Vasquez
on a number of fronts. While they make some good points,
we do not approach the question on a clean slate. In light of
the deference we owe the Board’s interpretation of ambigu-
ous immigration statutes, we must uphold the Board’s read-
ing of the statute if it meets the criteria established in Chev-
ron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837(1984). Yet even if O. Vasquez is entitled to Chevron deference,
we are not finished. Such a conclusion would require us to
resolve the distinct question whether the O. Vasquez one-year
filing rule must be applied retroactively. We now turn to
those two inquiries.
III
Chevron requires us to defer when a statute is ambiguous
and the agency charged with administering the statute
promulgates a reasonable interpretation using sufficiently
formal procedures. Arobelidze v. Holder, 653 F.3d 513, 518–19
(7th Cir. 2011). The Board is considered an agency in charge
of administering the Immigration and Naturalization Act
(INA). Zivkovic v. Holder, 724 F.3d 894, 897 (7th Cir. 2013). As
No. 13-2610 7
the Child Status Protection Act is an amendment to the INA,
“the [Board] is entitled to deference in interpreting [its] am-
biguous provisions.” Negusie v. Holder, 555 U.S. 511, 516
(2009); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425
(1999) (“[T]he [Board] should be accorded Chevron deference
as it gives ambiguous statutory terms concrete meaning
through a process of case-by-case adjudication[.]”) (internal
quotation omitted). Even so, we must “reject administrative
constructions which are contrary to clear congressional in-
tent.” Chevron, 467 U.S. at 843 n.9.
Velásquez’s opening position is that the phrase “sought
to acquire” in the Act is unambiguous. But exactly how an
immigrant must seek to acquire the status of a permanent
resident within one year of eligibility is not clear from the
statute. Which of the following, for example, constitutes
“seeking to acquire” permanent status: hiring an attorney,
consulting an attorney, earning money to pay for the appli-
cation, contacting immigration officials about one’s status,
telling an acquaintance about one’s intent to seek permanent
status, telling an official about one’s intent, mailing in a
complete application, mailing in an application in which a
signature line was left blank, or providing an attorney with a
completed application? The statute does not say whether
these or myriad other actions would be sufficient. Congress
left it up to the agency to decide what suffices to demon-
strate that the alien has sought to acquire permanent status.
When a statute contains “any gap left, implicitly or explicitly,
by Congress, the courts must respect the interpretation of
the agency to which Congress has delegated the responsibil-
ity for administering the statutory program.” INS v. Cardoza-
Fonseca, 480 U.S. 421, 448 (1987) (internal quotation omitted).
8 No. 13-2610
The phrase “sought to acquire” is not a term with a well-
established legal significance. Cf. Morissette v. United States,
342 U.S. 246, 250 (1952) (“[W]here Congress borrows terms
of art in which are accumulated the legal tradition and
meaning of centuries of practice, it presumably knows and
adopts the cluster of ideas that were attached to each bor-
rowed word in the body of learning from which it was taken
and the meaning its use will convey in the judicial mind un-
less otherwise instructed.”). Variants of the phrase appear
here and there in the U.S. Code, but we cannot discern any
consistent meaning among them. E.g., 7 U.S.C. § 3362(b)(3);
16 U.S.C. § 396f; 50 U.S.C. § 2367(b)(5). We thus find no fault
in the Board’s conclusion that the phrase “sought to acquire”
is “sui generis in the Act and is not a legal term of art in ap-
plicable regulations or administrative or judicial decisions.”
O. Vasquez, 25 I&N Dec. at 819.
Velásquez’s efforts to define the term only highlight its
ambiguity. At oral argument, Velásquez’s counsel suggested
that an immigrant would satisfy the “sought to acquire” re-
quirement if the immigrant “surfaced” within one year and
could prove it. We fail to see how that explanation makes
matters any more clear, much less why that interpretation is
compelled by the statutory language. Velásquez’s reference
to the dictionary definition of “seek” is similarly unreveal-
ing. One dictionary tells us the word may mean: “1. To try to
find or discover: search for. 2. To try to obtain or reach. 3. To
go to or toward … 4. To ask for: request. 5. To try: endeavor.
6. Obs[olete]. To explore.” WEBSTER’S II: NEW RIVERSIDE
UNIVERSITY DICTIONARY 1056 (1994). Which of these six
meanings should one choose? The statute does not say.
Worse, it does not speak only of seeking something; it also
uses the word “acquire,” which is no more clear in this con-
No. 13-2610 9
text. We see no need to belabor the point: the phrase “sought
to acquire” is one that is ambiguous enough to satisfy the
first step of Chevron.
This takes us to step two, in which we must decide
whether the Board has offered a reasonable interpretation. If
so, its understanding must prevail, even if we might have
preferred a different approach. See Holder v. Martinez
Gutierrez, 132 S. Ct. 2011, 2017 (2012); Negusie, 555 U.S. at
517; see also Emergency Servs. Billing Corp., Inc. v. Allstate Ins.
Co., 668 F.3d 459, 466 (7th Cir. 2012); Chevron, 467 U.S. at 842.
We assess the reasonableness of the Board’s interpretation
“in light of the legislative history, the purpose of the statute,
and comparative statutes.” Emergency Servs., 668 F.3d at 466.
The Board filled the statutory gap with the following
rule:
[A]n alien may satisfy the “sought to acquire”
provision … by properly filing the application
for adjustment of status with the [Department
of Homeland Security]. Additionally, the alien
may meet the requirement by establishing,
through persuasive evidence, that an applica-
tion he or she submitted to the appropriate
agency was rejected for a procedural or tech-
nical reason or that there were other extraordi-
nary circumstances, particularly those where
the failure to timely file was due to circum-
stances beyond the alien’s control.
O. Vasquez, 25 I&N Dec. at 823. Under this rule, immigrants
subject to the Act normally will know what is required of
them: file an application within one year of visa eligibility,
10 No. 13-2610
unless extraordinary circumstances prevent this step. (What
they may not know is which flaws will be considered minor
enough to qualify as procedural or technical glitches.)
The Board hoped that its rule would, in the normal run of
cases, provide clarity and consistency for immigration
courts. Id. at 821 (“Interpreting the statute in this manner …
‘promotes consistency and predictability, which are im-
portant principles in immigration law.’”) (quoting Matter of
C-T-L-, 25 I&N Dec. 341, 347 (B.I.A. 2010)). We cannot say the
Board acted unreasonably in coming to the conclusion that a
simple one-year filing requirement, with limited exceptions,
better serves the goal of uniformity than the more nebulous
“substantial steps” test it rejected.
This is true even if we accept, as Velásquez and amicus
curiae urge, that the Board’s interpretation frustrates the Act’s
purpose to prevent the adult children of permanent resi-
dents from “aging out” and to keep families together. That
may aptly describe Congress’s broader statutory purpose for
the Act, see Tovar, 646 F.3d at 1304, but Congress saw fit to
limit the Act’s reach to those immigrants who “sought to ac-
quire the status of an alien lawfully admitted for permanent
residence within one year.” 8 U.S.C. § 1153(h)(1)(A). In other
words, this statute, like most, balances competing desiderata.
In a system in which only a limited number of visas are
made available at any given time, see 8 U.S.C. § 1152(a), and
petitioners often wait years for a visa, the Act’s one-year
limitation allows unused visas to be recaptured and reallo-
cated to others awaiting such visas. As the Board is entrusted
to administer the statute, we defer to its judgment.
No. 13-2610 11
IV
The more difficult question before us is whether the O.
Vasquez rule should have been applied retroactively to Velás-
quez, even though his one-year period expired months before
O. Vasquez was decided. We review determinations about the
retroactive effect of legal rules de novo without giving any
deference to the agency on that question. Zivkovic, 724 F.3d
at 898–900; see also INS v. St. Cyr, 533 U.S. 289, 320 n.45
(2001).
As a general rule, “[r]etroactivity is not favored in the
law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988). The Supreme Court has explained that this aversion
to retroactive rulemaking
is deeply rooted in our jurisprudence, and em-
bodies a legal doctrine centuries older than our
Republic. Elementary considerations of fair-
ness dictate that individuals should have an
opportunity to know what the law is and to
conform their conduct accordingly; settled ex-
pectations should not be lightly disrupted. For
that reason, the principle that the legal effect of
conduct should ordinarily be assessed under
the law that existed when the conduct took
place has timeless and universal human ap-
peal.
Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (internal
quotation and citations omitted). In the immigration context,
the reluctance to impose rules retroactively is “buttressed by
‘the longstanding principle of construing any lingering am-
12 No. 13-2610
biguities in deportation statutes in favor of the alien.’” St.
Cyr, 533 U.S. at 320 (quoting Cardoza-Fonseca, 480 U.S. at
449).
A rule is considered to be retroactive when it “attaches
new legal consequences to events completed before its en-
actment.” Landgraf, 511 U.S. at 270. The inquiry “demands a
commonsense, functional judgment” and “should be in-
formed and guided by familiar considerations of fair notice,
reasonable reliance, and settled expectations.” Martin v.
Hadix, 527 U.S. 343, 357–58 (1999) (internal quotation omit-
ted); see also Landgraf, 511 U.S. at 270 (“[R]etroactivity is a
matter on which judges tend to have ‘sound instincts[.]’”)
(quoting Danforth v. Groton Water Co., 59 N.E. 1033, 1034
(Mass. 1901) (Holmes, J.)). Justice Story provided the classic
formulation: a legal rule has retroactive effect when it “‘takes
away or impairs vested rights acquired under existing laws,
or creates new obligations, imposes a new duty, or attaches a
new disability, in respect to transactions or considerations
already past.’” St. Cyr, 533 U.S. at 321 (quoting Soc’y for Prop-
agation of Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H.
1814) (Story, J.)). As applied to Velásquez, the Board’s deci-
sion in O. Vasquez has retroactive effect because it created a
new obligation—the duty to file a visa petition within one
year, rather than merely take substantial steps toward filing
—after Velásquez’s one-year filing window had already ex-
pired.
The appropriate standard for determining whether a le-
gal rule may be applied retroactively depends on the source
of the rule. For statutory rules, courts presume that a rule
lacks retroactive effect “absent clear congressional intent fa-
voring such a result.” Landgraf, 511 U.S. at 280; see also Var-
No. 13-2610 13
telas v. Holder, 132 S. Ct. 1479, 1491 (2012) (“The operative
presumption, after all, is that Congress intends its laws to
govern prospectively only.”) (citation and quotation omit-
ted). The Landgraf analysis applies equally to administrative
rules, except that in the latter case the court asks “whether
Congress has expressly conferred power on the agency to
promulgate rules with retroactive effect and, if so, whether
the agency clearly intended for the rule to have retroactive
effect.” Durable Mfg. Co. v. U.S. Dep’t of Labor, 578 F.3d 497,
503 (7th Cir. 2009). Such legislative and quasi-legislative
rules are presumed not to have retroactive effect because the
enacting authorities’ “responsivity [sic] to political pressures
poses a risk that it may be tempted to use retroactive legisla-
tion as a means of retribution against unpopular groups or
individuals.” St. Cyr, 533 U.S. at 315 (quoting Landgraf, 511
U.S. at 266); see also Stephen H. Legomsky, Fear and Loathing
in Congress and the Courts: Immigration and Judicial Review, 78
TEX. L. REV. 1615, 1626 (2000) (observing that, because noncit-
izens cannot vote, they are particularly vulnerable to adverse
legislation).
The presumption against retroactive application of legal
rules is reversed, however, in the special case where a court
furnishes the new rule. See Harper v. Va. Dep’t of Tax., 509 U.S.
86, 97 (1993) (“When this Court applies a rule of federal law
to the parties before it, that rule is the controlling interpreta-
tion of federal law and must be given full retroactive effect
in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate our
announcement of the rule.”). (It is an open question whether
Harper leaves anything of the three-part test for retroactivity
of judicial rules established in Chevron Oil Co. v. Huson, 404
U.S. 97 (1971). See Nunez-Reyes v. Holder, 646 F.3d 684, 690–91
14 No. 13-2610
(9th Cir. 2011); Kolkevich v. Att’y Gen. of U.S., 501 F.3d 323, 337
n.9 (3d Cir. 2007); Fairfax Covenant Church v. Fairfax Cnty. Sch.
Bd., 17 F.3d 704, 710 (4th Cir. 1994); Glazner v. Glazner, 347
F.3d 1212, 1216–17 (11th Cir. 2003) (en banc); Hulin v. Fibre-
board Corp., 178 F.3d 316, 333 (5th Cir. 1999). But we have no
cause to consider that question in this case.) The reasons that
judicial decisions are treated differently are rooted in the dif-
ferences between judicial and legislative institutions. See
Harper, 509 U.S. at 107 (Scalia, J., concurring) (“’[T]he prov-
ince and duty of the judicial department [is] to say what the
law is,’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803)—not what the law shall be.”) (citation omitted); see
also Rivers v. Rdwy. Exp., Inc., 511 U.S. 398, 312–13 (1994).
In principle, one might wonder where agency adjudica-
tions in which rules are announced fit into this framework,
given their blended legislative and judicial character. The
Board (like the National Labor Relations Board) is a policy-
making institution capable of “announcing new principles in
an adjudicative proceeding rather than through notice-and-
comment rulemaking.” Negrete-Rodriguez v. Mukasey, 518
F.3d 497, 503 (7th Cir. 2008) (citing SEC v. Chenery Corp., 332
U.S. 194, 203 (1947)). It is the Board’s status as an agency that
earns it the Chevron deference we have given to its interpre-
tation of the INA. But precisely because it is an agency, we
join the Ninth Circuit in rejecting “the government’s position
that the [Board], as the authoritative interpreter of an am-
biguous statute, has issued an interpretation … that is com-
parable to a judicial construction of a statute and is an au-
thoritative statement of what the statute meant before as well
as after the decision of the case giving rise to that construc-
tion.” Garfias-Rodriguez v. Holder, 702 F.3d 504, 515 (9th Cir.
2012) (en banc) (internal quotation omitted). Rather, as we
No. 13-2610 15
would with any agency rule, we start from the premise that
the Board “may not apply a new rule retroactively when to
do so would unduly intrude upon reasonable reliance inter-
ests.” Negrete-Rodriguez, 518 F.3d at 503–04 (internal quota-
tion omitted). The only exception is retroactive application to
the litigant whose case gave rise to the new rule: that person
had an opportunity to present argument to the agency and
ran the risk that the agency would use his case to announce a
rule. For others, however, a new agency rule announced by
adjudication is no different from a new agency rule an-
nounced by notice-and-comment rulemaking, for purposes
of retroactivity analysis.
To evaluate whether a new legal rule adopted in an agen-
cy adjudication may be applied retroactively to strangers to
the case, we apply the same test as our sister circuits. See
NLRB v. Wayne Transp., 776 F.2d 745, 751 n.8 (7th Cir. 1985);
Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380,
390 (D.C. Cir. 1972) (Retail, Wholesale); Clark-Cowlitz Joint Op.
Agency v. FERC, 826 F.2d 1074, 1081 (D.C. Cir. 1987) (en banc)
(“[Retail, Wholesale] provides the framework for evaluating
retroactive application of rules announced in agency adjudi-
cations.”); Garfias-Rodriguez, 702 F.3d at 518 (discussing the
test to be applied in “the situation when a new administra-
tive policy is announced and implemented through adjudi-
cation”) (quotation omitted); McDonald v. Watt, 653 F.2d
1035, 1042 (5th Cir. 1981). This approach strives to balance
the adjudicative and policymaking functions of administra-
tive agencies. “The general principle is that when as an inci-
dent of its adjudicatory function an agency interprets a stat-
ute, it may apply that new interpretation in the proceeding
before it. … [But] a retrospective application can properly be
withheld when to apply the new rule to past conduct or pri-
16 No. 13-2610
or events would work a manifest injustice.” Clark-Cowlitz,
826 F.2d at 1081 (quotation omitted).
Courts consider a number of factors in assessing whether
retroactive application of a rule is manifestly unjust, includ-
ing the following:
(1) Whether the particular case is one of first
impression, (2) whether the new rule repre-
sents an abrupt departure from well-
established practice or merely attempts to fill a
void in an unsettled area of law, (3) the extent
to which the party against whom the new rule
is applied relied on the former rule, (4) the de-
gree of burden which a retroactive order im-
poses on a party, and (5) the statutory interest
in applying a new rule despite the reliance of a
party on the old standard.
Wayne Transp., 776 F.2d at 751 n.8 (quoting Retail, Wholesale,
466 F.2d at 390); see also Negrete-Rodriguez, 518 F.3d at 504.
Like most such unweighted multi-factor lists, this one serves
best as a heuristic; no one consideration trumps the others.
With that in mind, we look to see what insight these consid-
erations offer for Velásquez’s case.
The first point in our list asks whether the particular case
is one of first impression. The term “first impression” as
used in this context, however, is misleading “insofar as it dif-
fers from the more typical understanding of the term as re-
ferring to situations in which an agency confronts an issue
that it has not resolved before.” Clark-Cowlitz, 826 F.2d at1082 n.6. In this context, as we noted earlier, a rule is more
likely to apply “retroactively” in the case where it is first an-
No. 13-2610 17
nounced (that is, to the parties involved in that case) than in
later cases in which it might apply to conduct of others that
took place before its announcement. Id. Bearing that in mind,
we have no quarrel with the application of the O. Vasquez
rule to O. Vasquez himself. That was the case of “first” im-
pression, and O. Vasquez never appealed the Board’s deci-
sion, so no court ever had the chance to pass on the retroac-
tivity of the rule in his case. If a court had considered his
case, it is possible that a full analysis under the rest of the
Retail, Wholesale framework might have pointed to retroac-
tive application of the rule. Unlike Velásquez, who promptly
consulted an attorney, retained the attorney, filed a FOIA re-
quest related to his quest for permanent status, and submit-
ted a complete application soon after immigration authori-
ties gave him a deadline for doing so, O. Vasquez did noth-
ing more than consult a notary (through his parents) about
the possibility of filing an application. See O. Vasquez, 25 I&N
Dec. at 2. We can assume, therefore, that for several reasons
retroactive application of the one-year filing rule was appro-
priate in O. Vasquez’s case. That does not mean, however,
that the same is necessarily true for Velásquez.
The pertinent question is whether the new rule may be
applied retroactively in later cases (that is, in cases that pro-
pose to apply the newly announced rule to persons who
were not involved in the case of first impression) against
persons like Velásquez, who had no notice that the rules
were about to change and who may have relied on the for-
mer legal regime. See Garfias-Rodriguez, 702 F.3d at 520–21.
The timing of the announcement of the O. Vasquez rule, we
conclude, militates against retroactive application. In Velás-
quez’s case, the government did not challenge any estab-
lished doctrines, but instead sought to have the new O.
18 No. 13-2610
Vasquez rule retroactively applied against Velásquez even
though Velásquez’s earlier conduct may well have satisfied
the legal requirements in effect at the time he took those
steps. That is exactly the kind of “second impression” case
that the first point in the D.C. Circuit’s Retail, Wholesale list
suggests should not apply the new rule retroactively.
The second and third considerations mentioned in the list
are closely intertwined. The second asks whether the new
rule represents an abrupt departure from well-established
practice or merely attempts to fill a void in an unsettled area
of law. The third examines the extent to which the party
against whom the new rule is applied may have relied on
the former rule. These considerations “require[] the court to
gauge the unexpectedness of a rule and the extent to which
the new principle serves the important but workaday func-
tion of filling in the interstices of the law.” Clark-Cowlitz, 826
F.2d at 1082; Garfias-Rodriguez, 702 F.3d at 521 (favoring ret-
roactivity “if a party could reasonably have anticipated the
change in the law such that the new requirement would not
be a complete surprise”) (quotation omitted). In short, “the
longer and more consistently an agency has followed one
view of the law, the more likely it is that private parties have
reasonably relied to their detriment on that view.” Clark-
Cowlitz, 826 F.2d at 1082–83. Importantly, the critical ques-
tion is not whether a party actually relied on the old law, but
whether such reliance would have been reasonable. See Var-
telas, 132 S. Ct. at 1491 (“Although not a necessary predicate
for invoking the antiretroactivity principle, the likelihood of
reliance on prior law strengthens the case for reading a newly
enacted law prospectively”) (emphasis added).
No. 13-2610 19
The answers to these questions also point against retroac-
tive application of the one-year filing requirement estab-
lished in O. Vasquez. Although O. Vasquez was the first prece-
dential Board decision directly to interpret the Act’s “sought
to acquire” language, it broke new ground. Up to that time,
guidance all pointed toward an understanding of “sought to
acquire” that called only for substantial steps to be taken.
See In re Murillo, supra, 2010 WL 5888675, at *4 (“Congress
intended that the alien must make an attempt to get or ob-
tain status as a lawful permanent resident within 1-year [sic]
of such eligibility, lesser actions than contemplated by use of
the terms ‘file,’ ‘submit,’ and ‘apply’”) (quotation omitted);
In re Ji Young Kim, supra, 2004 WL 3187209, at *3 (reversing
immigration judge’s ruling that immigrant failed to comply
with statute because application not filed within one year);
In re Castillo-Bonilla, supra, 2008 WL 4146759, at *2; see also
Tovar, 646 F.3d at 1305 (“We find the BIA’s reasonable inter-
pretation in these cases to be persuasive and in sync with the
intent of Congress in enacting the Act. Hence, we conclude
that Congress’s use of the term ‘sought to acquire’ in the Act
is broad enough to encompass substantial steps taken to-
ward the filing of the relevant application during the rele-
vant time period, but does not require that the alien actually
file or submit the application.”).
Before O. Vasquez, neither the Board nor any court had in-
terpreted the “sought to acquire” language of the Act to re-
quire a petitioner to file his visa application within one year.
In an effort to counter this unfavorable fact, the government
directs us to two Board decisions that purportedly construe
“sought to acquire” to mean “file” or “apply.” See In re Cher-
yl Tan Fernandez, No. A75 475 621, 2005 WL 1848352 (B.I.A.
May 6, 2005) (per curiam); In re Xiuyu Wang, 25 I&N Dec. 2820 No. 13-2610
(B.I.A. 2009). Neither case, in our view, goes this far. In
Wang, the Board expressly stated that it would “not address
the question” whether the petitioner’s failure to file a visa
petition within one year barred application of the Act. Id. at
33. Similarly, in Fernandez, the Board did not reach the ques-
tion because the petitioner took no steps to acquire perma-
nent status for over five years after becoming eligible. 2005
WL 1848352, at *1. In O. Vasquez itself, the Board cited no
prior cases in support of its interpretation of “sought to ac-
quire,” although it professed without elaboration that “other
unpublished Board decisions [] interpreted ‘sought to ac-
quire’ more restrictively.” 25 I&N Dec. 817 at 822.
In light of the state of the law at the critical time, a rea-
sonable person reasonably could have assumed that the Act
did not require him or her to file an application within one
year. Before the sea change in O. Vasquez in 2012, which oc-
curred too late for Velásquez to comply with it, the “substan-
tial test” steps had been consistently applied to the “sought
to acquire” language in the Act since 2004. Cf. Garfias-
Rodriguez, 702 F.3d at 522 (applying rule retroactively where
prior rule in effect for 21 months, during which time peti-
tioner took no action in reliance); Clark-Cowlitz, 826 F.2d at1083–84 (applying rule retroactively where previous rule
was in place for six months, during which time it was “be-
clouded” by possibility of being overturned on appeal). The
Board’s new one-year filing rule in O. Vasquez did not merely
fill a void “in the interstices of the [statute],” Retail, Whole-
sale, 466 F.2d at 391 (quoting Chenery, 332 U.S. at 202–03); ra-
ther, the new one-year filing rule reflected a shift in position
“solely as a result of a change in agency policy,” Clark-
Cowlitz, 826 F.2d at 1083. In such a case, retroactive applica-
tion is disfavored.
No. 13-2610 21
It is also worth noting that the state of the law at the time
of his application makes it virtually impossible for Velásquez
to claim ineffective assistance of his retained counsel for fail-
ing to advise him to file an application before his one-year
window expired. See In re Compean, 25 I&N Dec. 1, 1–2
(B.I.A. 2009) (reinstating standards for reviewing motions to
reopen deportation proceedings based on claims of ineffec-
tive assistance). Recall that Velásquez met with an attorney
to discuss obtaining his “green card” within weeks of be-
coming eligible for permanent status, retained the attorney
to investigate his eligibility, and allowed the attorney to file a
FOIA request on his behalf to that end. When the immigra-
tion judge provided Velásquez with a filing deadline during
his deportation proceedings (itself a clear sign that no one-
year filing deadline then-existed), he diligently complied
with it, submitting his application a week early. Until O.
Vasquez appeared, competent counsel might have considered
such steps to be substantial moves toward acquiring perma-
nent status, and might not have recognized that the applica-
tion itself had to be submitted within one year.
The fourth Retail, Wholesale inquiry concerns how much
of a burden a retroactive order would impose on a party. For
Velásquez, that burden is immense: he faces removal from
the only country he has called home since he was seven
years old. Courts have long recognized the obvious hardship
imposed by removal. E.g., St. Cyr, 533 U.S. at 322 (“Preserv-
ing the [immigrant]’s right to remain in the United States
may be more important to the [immigrant] than any poten-
tial jail sentence.”) (quotation omitted); Vartelas, 132 S. Ct. at
1487 (explaining that the Court has “several times recog-
nized the severity of [the] sanction” of deportation); Padilla v.
Kentucky, 559 U.S. 356, 369 (2010); Miguel-Miguel v. Gonzales,
22 No. 13-2610
500 F.3d 941, 952 (9th Cir. 2007) (“[D]eportation alone is a
substantial burden that weighs against retroactive applica-
tion of an agency adjudication.”). Non-retroactivity will not
impose undue costs on the United States, because few peti-
tioners will be similarly situated to Velásquez, either from
the standpoint of timing or that of reliance. The fourth con-
sideration identified by Retail, Wholesale thus also favors Ve-
lásquez. See Garfias-Rodriguez, 702 F.3d at 523.
Finally, we are advised to assess the statutory interest in
applying the new rule despite the reliance of a party on the
old standard. Often, this will “point[] in favor of the gov-
ernment because non-retroactivity impairs the uniformity of
a statutory scheme, and the importance of uniformity in
immigration law is well established.” Id. Here, however, the
general interest in uniformity must be assessed in light of the
broader statutory purpose of the Act to “provide[] age-out
protection for derivative child beneficiaries adversely affect-
ed by administrative delays in the adjudication of immigrant
petitions.” Tovar, 646 F.3d at 1304. The eight years it took the
Board to redefine what the Act’s “sought to acquire” lan-
guage requires is an administrative delay. Retroactively ap-
plying the Board’s new interpretation of the Act against Ve-
lásquez would squarely contradict the purpose of the stat-
ute.
In sum, our analysis persuades us that this is a case
“where the [agency] had confronted the problem before, had
established an explicit standard of conduct, and now at-
tempts to punish conformity to that standard under a new
standard subsequently adopted.” Retail, Wholesale, 466 F.2d
at 391. We conclude that retroactive application of the O.
No. 13-2610 23
Vasquez one-year filing requirement would work a manifest
injustice on Velásquez.
V
Because retroactive application of the O. Vasquez rule on
Velásquez is manifestly unjust, we GRANT the petition for
review and REMAND to the Board for determination whether
Velásquez took “substantial steps” to acquire permanent sta-
tus within one year of his eligibility, as provided by the
standard in effect prior to O. Vasquez.