Duran Gonzales v. Homeland Security ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AURELIO DURAN GONZALES; MARIA 
C. ESTRADA; MARIA LUISA
MARTINEZ DE MUNGUIA; IRMA
PALACIOS DE BANUELOS; LUCIA
MUNIZ DE ANDRADE; KARINA NORIS;
No. 07-35021
ADRIANA POUPARINA,
Plaintiffs-Appellees,
 D.C. No.
CV-06-01411-MJP
v.
OPINION
DEPARTMENT OF HOMELAND
SECURITY; MICHAEL CHERTOFF,
Secretary of the Department of
Homeland Security,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
August 6, 2007—Seattle, Washington
Filed November 30, 2007
Before: William C. Canby, Jr., Cynthia Holcomb Hall, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
15411
15414 GONZALES v. DEP’T OF HOMELAND SECURITY
COUNSEL
Peter D. Keisler (on the briefs); Thomas H. Dupree, Jr. (on
the briefs and argued); David Kline (on the briefs); Papu
Sandhu (on the briefs), United States Department of Justice,
Office of Immigration Litigation, Washington, DC, for the
defendant-appellants.
GONZALES v. DEP’T OF HOMELAND SECURITY 15415
Matt Adams (on the briefs and argued), Northwest Immigrant
Rights Project, Seattle, Washington; Trina Realmuto & Beth
Werlin (on the briefs), American Immigration Law Founda-
tion, Washington, DC; Marc Van Der Hout & Stacy Tolshin,
Van Der Hout, Brigagliano & Nightingale, San Francisco,
California, for the plaintiffs-appellees.
OPINION
CALLAHAN, Circuit Judge:
On December 19, 2006, the District Court for the Western
District of Washington entered an order granting preliminary
injunctive relief to a class of aliens, enjoining defendants
Department of Homeland Security and Secretary Michael
Chertoff (collectively “DHS”) from denying certain applica-
tions for permission to reapply for admission into the United
States, or from acting on any denied applications. We vacate
the order and remand because we defer to the decision by the
Board of Immigration Appeals (BIA) in In re Torres-Garcia,
23 I. & N. Dec. 866 (BIA 2006), which is dispositive of plain-
tiffs’ request for injunctive relief.
I
In 1994, Congress amended the Immigration and National-
ity Act (INA), providing for adjustment of status for certain
aliens otherwise ineligible for such relief because of their
unlawful status in the United States. Pub. L. No. 103-317,
Title V § 506(b), 108 Stat. 1724, 1765-66 (1994) (the special
adjustment provision). The special adjustment provision
excepted these aliens from certain admissibility requirements
for adjustment of status. See 8 U.S.C. § 1255(a). It allowed
the Attorney General to adjust the status of an alien who had
entered the United States without inspection to that of a legal
permanent resident provided that the alien (1) was admissible
15416 GONZALES v. DEP’T OF HOMELAND SECURITY
to the United States and the beneficiary of an immediately
available immigrant visa, and (2) paid an application fee five
times the usual fee. Pub. L. No. 103-317, § 506(b), 108 Stat.
1724, 1766 (1994). The 1994 law was effective for three
years, from October 1, 1994, until October 1, 1997. Id.In 1998, Congress extended the availability of the special
adjustment provision to aliens who were the beneficiaries of
an alien relative petition filed on or before January 14, 1998.
Pub. L. No. 105-119, § 111, 11 Stat. 2440 (1997). Finally, in
2000 Congress revived the special adjustment provision to
include beneficiaries of an alien relative petition filed on or
before April 30, 2001. LIFE Act Amendment of 2000, Pub.
L. No. 106-554, § 1502(a), 114 Stat. 2763 (2000). The 2000
provision required that the beneficiary of an alien relative
petition filed after January 14, 1998, be physically present in
the United States on December 20, 2000. Id. The special
adjustment provision is codified at 8 U.S.C. § 1255(i).
In 1996, Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA), effecting large
scale changes to the INA. Pub. L. No. 104-208, div. C, 110
Stat. 3009 (1996). In addition to the special adjustment provi-
sion, two IIRIRA provisions pertaining to aliens who reenter
the United States after being previously removed or deported
are relevant here—8 U.S.C. §§ 1231(a)(5) (the reinstatement
provision), and 1182(a)(9)(C)(i)(II) (the inadmissibility provi-
sion for previously removed aliens unlawfully present in the
United States).1
Section 1231(a)(5) provides for automatic reinstatement of
an alien’s prior removal or deportation order when an alien
has reentered the United States illegally. It also states that
“the alien is not eligible and may not apply for any relief”
1
IIRIRA also eliminated deportation and exclusion proceedings, merg-
ing them into the broader category of removal proceedings. See Mariscal-
Sandoval v. Ashcroft, 370 F.3d 851, 854 n.6 (9th Cir. 2004).
GONZALES v. DEP’T OF HOMELAND SECURITY 15417
from removal. Section 1182(a)(9)(C)(i)(II) deems perma-
nently inadmissible a previously removed alien who reenters
the United States unlawfully. An alien inadmissible under this
section, however, may seek admission into the United States
if: (1) he has been absent from the United States more than
ten years, and (2) he has received the consent of the Secretary
of Homeland Security to the application for readmission. 8
U.S.C. § 1182(a)(9)(C)(ii). Agency regulations provide that
permission to reapply is sought by the filing of an I-212 Form.
8 C.F.R. § 212.2. A successful applicant receives an “I-212
waiver.”
In August 2004, we held that a previously removed alien
unlawfully present in the United States was eligible to adjust
his status under the special adjustment provision provided that
he filed an I-212 waiver application prior to the initiation of
reinstatement proceedings, notwithstanding the bar to relief
from removal contained in IIRIRA’s reinstatement provision
and inadmissibility provision for previously removed aliens
unlawfully present in the United States. Perez-Gonzalez v.
Ashcroft, 379 F.3d 783 (9th Cir. 2004). Relying on this
authority, plaintiffs commenced the present action in the dis-
trict court.
II
The named plaintiffs in this case are seven Mexican citi-
zens who have previously been deported or removed from the
United States and have reentered without permission or detec-
tion. Each has applied for an I-212 waiver in conjunction with
an application for adjustment of status under the special
adjustment provision. The I-212 waiver application is pending
in four of the cases and has been denied, along with the
adjustment of status applications, in the remaining three cases.
On September 28, 2006, the named plaintiffs filed a com-
plaint against DHS for injunctive and declaratory relief, a
motion for a temporary restraining order and preliminary
15418 GONZALES v. DEP’T OF HOMELAND SECURITY
injunction, and a motion for class certification. The complaint
alleged that a class of persons “have been denied the opportu-
nity to apply for lawful permanent resident (LPR) status as a
result of Defendants’ refusal to comply with the precedent
decision of the Ninth Circuit in Perez-Gonzalez v. Ashcroft[.]”
Plaintiffs demonstrated DHS’s non-compliance by submitting
a March 31, 2006, Interoffice Memorandum from the United
States Citizenship and Immigration Service’s (USCIS) Acting
Associate Director for Operations and Acting Chief Counsel,
entitled “Effects of Perez-Gonzalez v. Ashcroft on adjudica-
tion of Form I-212 applications filed by aliens who are subject
to reinstated removal orders under INA § 241(a)(5)” (Interof-
fice Memorandum). The Interoffice Memorandum instructs
USCIS officers to adjudicate I-212 waiver applications before
instituting reinstatement proceedings in the Ninth Circuit only
when the alien meets § 1182(a)(9)(C)(ii)’s provision requiring
the lapse of ten years since the date of the alien’s last depar-
ture from the United States.
On November 13, 2006, the district court issued an order
granting the motions for injunctive relief and class certifica-
tion, and on December 19, 2006, it issued an order amending
the injunction.2 The district court held that the Interoffice
Memorandum conflicted with Perez-Gonzalez because Perez-
Gonzalez “did not read the exception to the [INA]
§ 212(a)(9)(C) ban as limiting the waiver available under 8
C.F.R. § 212.2” to those who had remained outside the United
States for more than ten years. It pointed out that Mr. Perez-
Gonzalez himself “was inadmissible under INA
§ 212(a)(9)(C) and had not remained outside the country for
more than ten years since his last departure.” It granted the
injunction because plaintiffs were likely to succeed on their
claim, and the harm faced by plaintiffs—the loss of eligibility
to apply for adjustment of status, including work authoriza-
2
DHS does not appeal the district court’s class certification. Thirty-one
class members are known, but plaintiffs believe the class to consist of sev-
eral hundred members.
GONZALES v. DEP’T OF HOMELAND SECURITY 15419
tion, and potential reinstatement of removal orders—
outweighed the government’s administrative burden and its
interest in deterring aliens from repeatedly entering the United
States illegally.
The amended injunction enjoins DHS from “applying or
enforcing the policy enumerated in Part 3(A) of the Perez-
Gonzales [sic] Memo against any member of the class for the
remainder of this action.” It prevents DHS from “deny[ing]
any class member’s I-212 applications in the Ninth Circuit on
the grounds that the applicant is inadmissible under INA
§ 212(a)(9)(C)(i)(II) and ten years have not elapsed since the
applicant’s last departure from the United States,” (emphasis
omitted) and from:
giv[ing] any legal effect to any denied I-212 applica-
tions of class members if: (a) the applicant’s I-212
application was adjudicated in a USCIS District
Office located with the Ninth Circuit, (b) the appli-
cation was denied between August 13, 2004 (the
date Perez-Gonzales [sic] was filed) and the date of
this Order, and (c) the application was denied on the
grounds that the applicant was inadmissible under
INA § 212(a)(9)(C)(i)(II) and ten years had not
elapsed since the applicant’s last departure from the
United States.
DHS timely appeals. The district court stayed discovery
and ordered that the injunction remain in effect pending
appeal.
III
We first review the district court’s jurisdiction. We then
examine whether the law supporting the district court’s deci-
sion remains in effect in light of two post-Perez-Gonzalez
decisions, Fernandez-Vargas v. Gonzales, 126 S. Ct. 242215420 GONZALES v. DEP’T OF HOMELAND SECURITY
(2006), and In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA
2006).
A. Standard of Review
The existence of subject matter jurisdiction is a question of
law reviewed de novo. Coyle v. P.T. Garuda Indonesia, 363
F.3d 979, 984 n.7 (9th Cir. 2004). We also review de novo
whether exhaustion is required in an immigration case. Chang
v. United States, 327 F.3d 911, 919 (9th Cir. 2003).
We review the scope of injunctive relief for an abuse of
discretion. Idaho Watersheds Project v. Hahn, 307 F.3d 815,
823 (9th Cir. 2002). Review is de novo when the district
court’s ruling rests solely on a premise of law and the facts
are either established or undisputed. Harris v. Board of Super-
visors, 366 F.3d 754, 760 (9th Cir. 2004).
B. Subject Matter Jurisdiction
[1] Before reaching the merits of this appeal, we must
address the government’s contention that the district court
lacked jurisdiction to enter the injunction. Title 8 U.S.C.
§ 1252(f)(1) precludes jurisdiction over actions “to enjoin or
restrain the operation of the provisions of part IV” of sub-
chapter II of the INA, except as to “an individual alien against
whom proceedings under such part have been initiated.” Part
IV, captioned “Inspection, Apprehension, Examination,
Exclusion, and Removal,” contains the reinstatement provi-
sion. Adjustment of status, however, falls under part V of sub-
chapter II, and inadmissibility provisions are contained in part
II.
DHS contends that § 1252(f)(1) barred the district court
from issuing this injunction because the injunction prevents
the department from giving “legal effect” to any denied I-212
application. DHS reasons that the “legal effect” of such a
denial is the commencement of reinstatement proceedings
GONZALES v. DEP’T OF HOMELAND SECURITY 15421
under § 1231(a)(5) and, by requiring aliens to bring individual
proceedings to challenge provisions under part IV, § 1252(f)
was intended to preclude courts from granting class-wide
relief to enjoin the operation of the reinstatement provision.
DHS cites to the legislative history behind § 1252(f), explain-
ing that “a single district court or court of appeals does not
have authority to enjoin procedures established by Congress
to reform the process of removing illegal aliens from the
United States.” House Judiciary Committee Report No. 104-
469(I) at 161.
Plaintiffs respond that the district court’s order enjoins the
unlawful application of § 1255(i)—the special adjustment
provision—which falls under part V of subchapter II of the
INA. They argue that application of the reinstatement provi-
sion is not a direct consequence of the denial of an I-212
waiver or an adjustment of status application, but rather it is
one of several available recourses following the denial of an
adjustment of status application.
[2] In support of their argument, plaintiffs cite to Catholic
Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) (en
banc). There, we held that § 1252(f)(1)’s limitation on injunc-
tive relief did not apply to a district court order enjoining the
Immigration and Naturalization Service enforcing an unlawful
advance parole policy that prevented an alien from adjusting
his status under a 1986 amnesty provision. Id. at 1149-50.3
The law required that the alien reside in the United States
continuously for a certain time period and provided that a
“brief casual and innocent absence” from the country would
not disrupt this continuity requirement. Id. at 1142. The INS
required an alien to obtain advance parole, i.e., advanced per-
mission to reenter the United States, for any departure to be
3
On March 1, 2003, the Immigration and Naturalization Service ceased
to exist and its functions were transferred to the newly established Depart-
ment of Homeland Security. See Homeland Security Act of 2002, 6 U.S.C.
§§ 101, 111, 251, 252.
15422 GONZALES v. DEP’T OF HOMELAND SECURITY
deemed “brief, casual and innocent.” Id. As part of that class-
action injunction, the district court enjoined the government
from executing final orders of removal in cases where the
aliens’ adjustment of status applications had been rejected
because of the unlawful advance parole policy. Id. at 1145.
We held that § 1252(f)(1) was inapplicable because the
injunction was issued under a statutory provision governing
adjustment of status, which is located in part V of subchapter
II of the INA. Id. at 1150.
[3] We conclude that Catholic Social Services is control-
ling. There, like this case, the district court enjoined the
unlawful application of statutory provisions regarding adjust-
ment of status. In both cases, removal was a collateral effect
of the unlawful practice of denying adjustment of status. Sec-
tion 1252(f)(1) does not prohibit the current injunction
because, as in the Catholic Social Services injunction, it
directly implicates the adjustment of status provision which
falls under part V of subchapter II, notwithstanding that a
reinstatement proceeding may be a collateral consequence of
an unsuccessful adjustment application. Accordingly, the dis-
trict court did not err by concluding that the injunction’s
effect on reinstatement proceedings “is one step removed
from the relief sought by Plaintiffs and therefore does not
bring this action within the INA § 242(f) bar.”
[4] DHS also contends that the district court erred as a pru-
dential matter by not requiring plaintiffs to exhaust adminis-
trative remedies.4 Prudential exhaustion was not required.
Prudential exhaustion comes into play where “(1) agency
expertise makes agency consideration necessary to generate a
proper record and reach a proper decision; (2) relaxation of
4
Under Darby v. Cisneros, 509 U.S. 137, 154 (1993), administrative
exhaustion is required as a prerequisite to judicial review only “when
expressly required by statute or . . . agency rule[.]” Because no statute or
rule mandates administrative review of the denial of adjustment of status,
statutory exhaustion was not required in this case.
GONZALES v. DEP’T OF HOMELAND SECURITY 15423
the requirement would encourage the deliberate bypass of the
administrative scheme; and (3) administrative review is likely
to allow the agency to correct its own mistakes and to pre-
clude the need for judicial review.” El Rescate Legal Servs.,
Inc. v. Executive Office of Immigration Review, 959 F.2d 742,
747 (9th Cir. 1992) (internal quotations omitted). Here the
agency has spoken clearly through the policy statement con-
tained in the Interoffice Memorandum and its application of
this policy in a number of cases. Moreover, the case presents
a question of law that would not be aided by further develop-
ment of the record.
C. Fernandez-Vargas v. Ashcroft does not undermine
Perez-Gonzalez
Pursuant to Galbraith v. County of Santa Clara, 307 F.3d
1119, 1123 (9th Cir. 2002), we can overrule our existing pre-
cedent without en banc proceedings when intervening
Supreme Court authority undermines our precedent, “and both
cases are closely on point.” DHS argues that the Supreme
Court’s Fernandez-Vargas decision undermines, and thus
overrules, the threshold Perez-Gonzalez holding—that a suc-
cessful I-212 waiver would act to prevent the reinstatement
provision’s bar to relief from removal.
In Fernandez-Vargas, the Supreme Court addressed
whether IIRIRA’s reinstatement provision applied to aliens
who reentered the United States unlawfully prior to IIRIRA’s
effective date, April 1, 1997. 126 S. Ct. at 2425. Fernandez-
Vargas, like plaintiffs in the case at bar, reentered the United
States unlawfully after being previously deported.5 Several
5
In contrast to the plaintiffs at bar, however, Fernandez-Vargas was not
deemed inadmissible under § 1182(a)(9)(C)(i)(II) but instead under
§ 1182(a)(9)(A)(i) (provision for previously removed arriving alien), pre-
sumably because he reentered the United States prior to IIRIRA’s effec-
tive date. See Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 883-884 (10th
Cir. 2005); INS Provides Interim Guidance On New Grounds Of Inadmis-
sibility, 74 No. 25 Interpreter Releases 1033, 1035 (July 7, 1997).
15424 GONZALES v. DEP’T OF HOMELAND SECURITY
years later he filed an application to adjust his status to lawful
permanent resident through his United States citizen wife.
The application prompted the INS, in 2003, to reinstate his
prior deportation order, thus preventing him from adjusting
his status. Id. at 2427.
[5] Prior to the passage of IIRIRA, Fernandez-Vargas was
eligible to apply for adjustment of status under the special
adjustment provision. Id. He argued that the former law gov-
erned his case because his illegal reentry occurred prior to
IIRIRA’s effective date. Id. at 2428. He also contended that
applying the new reinstatement provision to him would have
an impermissibly retroactive effect. Id. The Supreme Court
rejected both arguments. First, it held that the new reinstate-
ment provision, on its face, reached aliens who reentered the
United States pre-IIRIRA. Id. at 2428-30. It then held that the
reinstatement provision had no retroactivity effect because it
does not penalize an alien for his illegal reentry but rather “es-
tablishes a process to remove him” based on his “remaining
in the country after [re]entry.” Id. at 2432. Thus, “the statute
applies to stop an indefinitely continuing violation that the
alien himself could end at any time by voluntarily leaving the
country.” Id.
DHS argues that had the Supreme Court agreed with Perez-
Gonzalez, it would have required the agency to adjudicate
Fernandez-Vargas’s adjustment of status application. Thus,
DHS contends that by implication Fernandez-Vargas under-
mines Perez-Gonzalez and requires us to disregard our hold-
ing that a successful I-212 waiver would avoid application of
the reinstatement provision.
[6] DHS’s argument fails because the Supreme Court in
Fernandez-Vargas did not address the issues raised in Perez-
Gonzalez. We have held that issues that are not raised or dis-
cussed are “unstated assumptions on non-litigated issues [and]
are not precedential holdings binding further decisions.”
Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288
GONZALES v. DEP’T OF HOMELAND SECURITY 15425
(9th Cir. 1985). The Supreme Court’s holdings (1) that the
reinstatement provision reaches aliens regardless of when
they illegally reentered the United States, and (2) that the pro-
vision has no impermissible retroactive effect on aliens who
reentered the United States prior to IIRIRA’s effective date,
do not address the holding in Perez-Gonzalez that a successful
I-212 waiver, if filed prior to the initiation of reinstatement
proceedings, can circumvent application of the reinstatement
statute.6 Accordingly, the district court did not err by conclud-
ing that Fernandez-Vargas does not undermine Perez-
Gonzalez.
D. National Cable & Telecommunications Ass’n v. Brand
X Internet Services requires that we review Perez-
Gonzalez in light of the BIA’s opinion in In re Torres-
Garcia
DHS also contends that the BIA’s opinion in In re Torres-
Garcia undermines the Perez-Gonzalez holdings pertaining to
an illegal reentrant’s admissibility and submits that the district
court erred by failing to defer to In re Torres-Garcia. The
question, then, is whether, under National Cable & Telecom-
munications Ass’n v. Brand X Internet Services, 545 U.S. 967(2005) (Brand X), we must now defer to In re Torres-Garcia.
If we determine that we are bound by In re Torres-Garcia,
then the district court, in turn, will be bound by our decision.
In Chevron USA, Inc. v. Natural Resources Defense Coun-
cil, 467 U.S. 837 (1984), the Supreme Court established a
two-step inquiry for judicial review of an agency’s construc-
tion of a statute. First, the reviewing court must determine
whether the statute is unambiguous: “If the intent of Congress
is clear, that is the end of the matter; for the court, as well as
6
The Supreme Court had no reason to direct the agency to adjudicate
Mr. Fernandez-Vargas’s adjustment of status application because the
issues presented to the Supreme Court were resolved by an affirmance of
the Tenth Circuit’s judgment.
15426 GONZALES v. DEP’T OF HOMELAND SECURITY
the agency, must give effect to the unambiguously expressed
intent of Congress.” Id. at 842-43. The Court explained that
“[i]f a court, employing traditional tools of statutory construc-
tion, ascertains that Congress has an intention on the precise
question at issue, that intention is the law and must be given
effect.” Id. at 843 n.9. However, if the court determines that
the statute is “silent or ambiguous,” it then proceeds to the
second Chevron step. Id. at 843. It does not impose its own
construction of the statute, but rather it decides “whether the
agency’s answer is based on a permissible construction of the
statute.” Id.[7] Brand X dealt with an agency’s statutory interpretation
that conflicted with a circuit court’s earlier interpretation of a
statute. The Supreme Court held that the circuit court must
apply Chevron deference to an agency’s interpretation of a
statute regardless of the circuit court’s contrary precedent,
provided that the court’s earlier precedent was an interpreta-
tion of a statutory ambiguity. Brand X, 545 U.S. at 980-82.
The Court explained:
A court’s prior judicial construction of a statute
trumps an agency construction otherwise entitled to
Chevron deference only if the prior court decision
holds that its construction follows from the unambig-
uous terms of the statute and thus leaves no room for
agency discretion. . . . Only a judicial precedent
holding that the statute unambiguously forecloses the
agency’s interpretation, and therefore contains no
gap for the agency to fill, displaces a conflicting
agency construction.
Id. at 982-83.
[8] Accordingly, Brand X requires us to review our prior
opinion in Perez-Gonzalez in light of the BIA’s subsequent
decision in In re Torres-Garcia. If we conclude that Perez-
Gonzalez was based, at least in part, on ambiguity in the
GONZALES v. DEP’T OF HOMELAND SECURITY 15427
applicable statutes, then pursuant to Chevron and Brand X we
must give deference to the agency’s resolution of these
ambiguities in In re Torres-Garcia.7
E. Our holding in Perez-Gonzalez v. Ashcroft
In Perez-Gonzalez, we first addressed whether the rein-
statement provision categorically barred a previously removed
alien who unlawfully reentered the United States from obtain-
ing adjustment of status under the special adjustment provi-
sion. We distinguished Padilla v. Ashcroft, 334 F.3d 921, 925
(9th Cir. 2003)—where we held that an alien who had unlaw-
fully reentered the United States was barred by the reinstate-
ment provision from adjusting his status under the special
adjustment provision—on the grounds that Padilla had
applied only for adjustment of status prior to the initiation of
reinstatement proceedings, while Perez-Gonzalez had applied
for adjustment of status and an I-212 waiver of inadmissibil-
ity before the initiation of his reinstatement proceedings. 379
F.3d at 788.
[9] Perez-Gonzalez held that a successful I-212 waiver
“would offer a means of avoiding the reinstatement provi-
sion’s bar.” Id. at 788. We reasoned that by applying for the
I-212 waiver before the initiation of reinstatement proceed-
ings, Perez-Gonzalez was not yet subject to the reinstatement
provision and therefore not barred from seeking adjustment of
7
Although a three-judge panel is usually bound by the opinion of a prior
three-judge panel, we have recognized an exception where “the reasoning
or theory of our prior circuit authority is clearly irreconcilable with the
reasoning or theory of intervening higher authority,” such that the prior
three-judge panel’s decision has been “effectively overruled.” Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). This is such a situa-
tion. The Supreme Court’s opinions in Chevron and Brand X together hold
that to the extent that Perez-Gonzalez was grounded in the ambiguous lan-
guage of the statute, the BIA’s reasonable discretionary construction of the
statute in In re Torres-Garcia has “effectively overruled” contrary hold-
ings in Perez-Gonzalez.
15428 GONZALES v. DEP’T OF HOMELAND SECURITY
status through the special adjustment provision. Id. We
explained that “[h]ad the INS exercised its discretion [over
Perez-Gonzalez’s I-212 waiver request] in Perez-Gonzalez’s
favor, he would no longer be subject to the reinstatement pro-
vision as he would no longer be considered an illegal entrant.”
Id.8
We next held that the INS’s denial of Perez-Gonzalez’s I-
212 application based on his failure to apply for the waiver
from outside the United States was legal error because it was
contrary to the agency’s regulations, which provide (1) for the
filing of an I-212 Form by an applicant for adjustment of sta-
tus “with the district director having jurisdiction over the
place where the alien resides,” and (2) for the approved I-212
Form, filed in conjunction with an application for adjustment
of status, to “be retroactive to the date on which the alien
embarked or reembarked at a place outside the United States.”
Id. at 789 (citing 8 C.F.R. §§ 212.2(e), (g)(2), (i)(2)).9
8
While DHS argued that this holding was undermined by Fernandez-
Vargas, it acknowledged at oral argument that In re Torres-Garcia does
not reach this issue.
9
Subsection 212.2(e) reads:
Applicant for adjustment of status. An applicant for adjustment
of status under section 245 of the Act and part 245 of this chapter
must request permission to reapply for entry in conjunction with
his or her application for adjustment of status. This request is
made by filing an application for permission to reapply, Form I-
212, with the district director having jurisdiction over the place
where the alien resides. If the application under section 245 of the
Act has been initiated, renewed, or is pending in a proceeding
before an immigration judge, the district director must refer the
Form I-212 to the immigration judge for adjudication.
Subsection (g)(2) reads:
If the applicant is physically present in the United States but is
ineligible to apply for adjustment of status, he or she must file the
application with the district director having jurisdiction over his
or her place of residence.
GONZALES v. DEP’T OF HOMELAND SECURITY 15429
We then determined that this legal error prejudiced Perez-
Gonzalez because he was otherwise legally eligible for adjust-
ment of status, and we accordingly remanded to the BIA for
a determination of whether he was entitled to the I-212 waiver
as a matter of discretion. Id. at 790-96. Importantly, we held
that the I-212 waiver cured Mr. Perez-Gonzalez’s inadmissi-
bility under § 1182(a)(9)(C)(i)(II). Id. at 793-95. We relied on
the text of the special adjustment provision allowing aliens
who “entered the United States without inspection” to apply
for adjustment of status, noting that nothing in that statute—
passed in 1994 and extended in 1997 and 2000—nor in the
discussion of the statute’s purpose, limited the adjustment of
status provision to aliens not subject to the reinstatement pro-
vision. Id. at 793. We also relied on 8 C.F.R. §§ 212.2(e) and
(i)(2), concluding that these regulations “expressly permit
applicants for adjustment of status who have been previously
removed or deported to apply for permission to reapply from
within this country.” Id. We noted further that 8 C.F.R.
§ 245.1(c), which sets forth classes of aliens ineligible for
adjustment of status, does not include previously deported or
removed aliens. Id.F. Perez-Gonzalez was based on a finding of statutory
ambiguity
We conclude that, despite some language to the contrary,
Perez-Gonzalez was based on a finding of statutory ambiguity
that left room for agency discretion. Chevron deference is
mentioned twice in Perez-Gonzalez. As part of the standard
of review discussion, we wrote that Chevron deference was
Subsection (i)(2) reads:
If the alien filed Form I-212 in conjunction with an application
for adjustment of status under section 245 of the Act, the
approval of Form I-212 shall be retroactive to the date on which
the alien embarked or reembarked at a place outside the United
States.
15430 GONZALES v. DEP’T OF HOMELAND SECURITY
not applicable to our decision because the “normal principles
of statutory construction suffice.” Perez-Gonzalez, 379 F.3d
at 786. Later in the opinion, when rejecting an agency guid-
ance memorandum stating that aliens inadmissible under sub-
section (a)(9)(C) are disqualified from seeking adjustment of
status, Perez-Gonzalez explained that the guidance memoran-
dum was entitled to only “some deference,” under Christen-
sen v. Harris County, 529 U.S. 576, 587 (2000), as opposed
to “[r]egulations . . . [that] are a form of agency interpretation
that is due Chevron deference.” 379 F.3d at 793. When reject-
ing the guidance memorandum as inconsistent with the spe-
cial adjustment provision and its implementing regulation 8
C.F.R. § 212.2, we commented that “[i]n the absence of a
more complete agency elaboration of how its interpretation of
[INA] § 212(a)(9) can be reconciled with its own regulations,
we must defer to the regulations rather than to the informal
guidance memorandum.” Id. at 794 (citing Christensen, 529
U.S. at 587).
DHS argues that by the above statement, we did not rely on
an unambiguous interpretation of the statute’s inadmissibility
provision. It urges that the reference to Chevron in the stan-
dard of review section is generalized and not supported by the
text of the opinion in the specific context of the opinion’s
interpretation of Section 1182(a)(9)(C). In contrast, plaintiffs
contend that Brand X does not apply because we decided
Perez-Gonzalez under the first step of Chevron—by relying
on the statutory terms of the special adjustment provision,
buttressed by the agency’s regulations.
Although Perez-Gonzalez relied on the special adjustment
provision to hold that inadmissibility under subsection
(a)(9)(C) was not a bar to adjustment of status, we clearly
relied on the agency regulations to reconcile the inadmissibil-
ity provision with the special adjustment provision. Id. at 973.
We could not rely on the plain language of the inadmissibility
provision to reach our holding because subsection
(a)(9)(C)(ii) provides for a waiver of this permanent inadmis-
GONZALES v. DEP’T OF HOMELAND SECURITY 15431
sibility only by remaining outside the United States for ten
years. Instead, we expressly deferred to the regulations, rea-
soning that (1) they were consistent with the special adjust-
ment provision (not the inadmissibility provision), and (2)
they would make no sense if read in conjunction with the
guidance memorandum. Id. at 794.
[10] Thus, notwithstanding Perez-Gonzalez’s disclaimer of
Chevron deference, careful review of the opinion shows that
it is premised on the existence of ambiguity in the interplay
between the inadmissibility and adjustment of status provi-
sions. Accordingly, our decision did not “follow[ ] from the
unambiguous terms of the statute and thus leave[ ] no room
for agency discretion.” Brand X, 545 U.S. at 982. We did not
“foreclose[ ] the agency’s interpretation” of the statutory
scheme, id. at 983, but rather relied on the regulations to both
reject an informal agency interpretation of the inadmissibility
provision and reach our holding. Perez-Gonzalez, 379 F.3d at
794. Indeed, we noted that we were deferring to the regula-
tions “[i]n the absence of a more complete agency elaboration
of how its interpretation of [INA] § 212(a)(9) can be recon-
ciled with its own regulations.” Id. at 794.
[11] The issue in Perez-Gonzalez might have been resolved
under the first step of Chevron by examining the text of the
relevant statutes and their legislative histories. Indeed, this
was the BIA’s approach in In re Torres-Garcia, as well as the
approach taken by the Tenth Circuit in Berrum-Garcia. See
infra note 12. This approach was also adopted by a member
of the Perez-Gonzalez panel who dissented from the denial of
Mr. Perez-Gonzalez’s petition for panel rehearing.10 However,
10
Judge Gould wrote that he would follow Berrum-Garcia “because
there is no necessary conflict” between the reinstatement provision and the
special adjustment provision. Perez-Gonzalez v. Gonzales, 403 F.3d 1116,
1117 (9th Cir. 2005) (order dissenting from the denial of panel rehearing).
A straightforward application of these two provisions, which can
rationally be read together without conflict, leads to the conclu-
15432 GONZALES v. DEP’T OF HOMELAND SECURITY
by declining to adhere to the plain language of the inadmissi-
bility provision and instead falling back on the regulations,
Perez-Gonzalez did not find the inadmissibility provision, nor
the statutory scheme, to be unambiguous. Accordingly, we are
not bound by Perez-Gonzalez and must defer to In re Torres-
Garcia if its interpretation of the governing statute is reason-
able.
G. The BIA decision in In re Torres-Garcia interprets the
applicable statutes
In In re Torres-Garcia, a case arising out of Dallas, Texas,
the BIA addressed whether § 1182(a)(9)(C)(i)(II) barred a
Mexican citizen who was unlawfully present in the United
States after having been removed from adjusting his status
under the special adjustment provision. 23 I. & N. Dec. at
869. Torres-Garcia received an I-212 waiver while in Mexico,
granting his request for permission to reapply for admission.
Id. at 867. Instead of reapplying for admission, however,
Torres-Garcia reentered the United States without being
admitted or paroled. Id. Subsequently, he filed an application
for adjustment of status under the special adjustment provi-
sion which was denied because he was unlawfully present in
the United States. Id. He was placed in removal proceedings
where he renewed his adjustment of status application. Id.
The immigration judge pretermitted his renewed application
sion that Perez-Gonzalez cannot qualify for adjustment of status
under the plain language of § 245(i) because he is inadmissible
under § 212(a)(9)(C). That Perez-Gonzalez applied for an I-212
waiver does not save him from § 212(a)(9)(C)’s bar to admissi-
bility because he did not comply with § 212(a)(9)(C)(ii), which
requires that such application be filed from outside the United
States before reentry.
Id. at 1117-18. Judge Gould explained that the majority “erroneously
treats 8 C.F.R. § 212.2 as an independent authority for I-212 waivers, sep-
arate from INA § 212 itself . . . when 8 C.F.R. § 212.2 is an agency regula-
tion that implements INA § 212.” Id. at 1118.
GONZALES v. DEP’T OF HOMELAND SECURITY 15433
because Mr. Torres-Garcia’s unlawful reentry into the United
States rendered him inadmissible under § 1182(a)(9)(C)(i)(II).
Id. Torres-Garcia argued that he was not inadmissible under
subsection (a)(9)(C)(i)(II) because, like Perez-Gonzalez, he
had applied for his I-212 waiver before the commencement of
removal proceedings. Id. at 873. He maintained further that
DHS’s approval of the waiver insulated him against any alle-
gation of inadmissibility arising from his subsequent unlawful
reentry. Id. at 870.
The BIA rejected these arguments, explaining first that the
I-212 waiver was limited to Torres-Garcia’s inadmissibility
under 8 U.S.C. § 1182(a)(9)(A)(ii), pertaining to aliens who
had been removed after illegally entering or attempting to
enter the United States.11 Id. at 871-72. In other words, the I-
212 waiver allowed him to apply for readmission without
waiting the ten or twenty years otherwise required by subsec-
tion (a)(9)(A)(ii). The BIA explained that by reentering the
United States without permission, Torres-Garcia became per-
manently inadmissible under subsection (a)(9)(C)(i)(II). Id. at
871. He was ineligible to seek an I-212 waiver at that point
because he did not qualify for relief from permanent inadmis-
sibility under subsection (a)(9)(C)(ii), which requires an alien
to remain outside of the United States for ten years before
requesting permission to reapply for admission. Id. at 873.
Therefore, Torres-Garcia’s successful waiver under subsec-
tion (a)(9)(A)(iii), obtained from outside the United States
11
Subsection 1182(a)(9)(A)(i) deems an alien removed upon arrival
inadmissible for five years. Subsection (a)(a)(9)(A)(ii) deems an alien who
entered the United States and was removed inadmissible for ten years, or
twenty years if the alien has been removed more than once or is an aggra-
vated felon. Subsection (9)(A)(iii) provides for a waiver of inadmissibility
for aliens falling under either subsection (a)(9)(A)(i) or (a)(9)(A)(ii) if,
from outside of the United States, the alien receives the Attorney Gener-
al’s consent to reapply for admission. Unlike subsection (a)(9)(c)(ii), Sub-
section (a)(9)(A)(iii) does not place a time restriction on the ability to
request permission to reapply for admission. We note that the procedures
in subsection (a)(9)(A) are not the subject of this appeal.
15434 GONZALES v. DEP’T OF HOMELAND SECURITY
before he reentered the country, had no effect on his subse-
quent inadmissibility under subsection (a)(9)(C)(i)(II)—as a
previously removed alien unlawfully present in the United
States. Id.The BIA also rejected Perez-Gonzalez as support for
Torres-Garcia’s position:
[W]e believe the Ninth Circuit’s analysis regarding
the availability of a retroactive waiver of the ground
of inadmissibility set forth at [INA] section
212(a)(9)(C)(i) contradicts the language and purpose
of the Act and appears to have proceeded from an
understandable, but ultimately incorrect, assumption
regarding the applicability of 8 C.F.R. § 212.2.
Id. at 873. The BIA explained that the regulation was promul-
gated to implement changes to the INA made in 1990 and did
not reflect the statutory changes made to the INA in IIRIRA.12
It reasoned:
12
The 1990 amendments to the INA created a new § 1182(a)(6), which
provided that a previously removed alien “who seeks admission within 5
years of the date of such deportation or removal (or within 20 years in the
case of an alien convicted of an aggravated felony) is excludable, unless
before the date of the alien’s embarkment or reembarkment at a place out-
side the United States . . . the Attorney General has consented to the
alien’s applying or reapplying for admission.” Immigration Act of 1990,
Pub. L. No. 101-649, 104 Stat. 4978 (1990).
In 1996 IIRIRA amended § 1182(a)(6) to its present form. It now reads:
“An alien present in the United States without being admitted or paroled,
or who arrived in the United States at any time or place other than as des-
ignated by the Attorney General, is inadmissible.” 8 U.S.C.
§ 1182(a)(6)(A)(i). No waiver of inadmissibility is provided under subsec-
tion (a)(6)(A). However, IIRIRA also created new subsection 1182(a)(9),
classifying as inadmissible three types of previously removed aliens: (A)
Certain aliens previously removed; (B) Aliens unlawfully present; and (C)
Aliens unlawfully present after previous immigration violations, with cor-
responding waivers. See supra note 10, (detailing the terms of inadmissi-
bility under subsection (a)(9)(A)).
GONZALES v. DEP’T OF HOMELAND SECURITY 15435
[W]hile 8 C.F.R. §§ 212.2(e) and (i)(2) authorize
aliens who are unlawfully present in the United
States to seek permission to reapply for admission
retroactively in conjunction with an application for
an adjustment of status, the very concept of retroac-
tive permission to reapply for admission, i.e., per-
mission requested after unlawful reentry, contradicts
the clear language of section 212(a)(9)(C), which in
its own right makes unlawful reentry after removal
a ground of inadmissibility that can only be waived
after the passage of 10 years.
Id. at 874-75 (citing Berrum-Garcia v. Comfort, 390 F.3d
1158, 1167 (10th Cir. 2004)).13
13
Berrum-Garcia addressed the identical issue presented in Perez-
Gonzalez—whether an alien subject to inadmissibility under subsection
(9)(C)(i)(II) as an illegal reentrant was barred from adjusting his status
under the special adjustment provision by the commencement of reinstate-
ment proceedings, even though he had filed his I-212 waiver request and
adjustment application prior to the initiation of reinstatement proceedings.
390 F.3d at 1162-63. The Tenth Circuit explained that the timing of the
alien’s application for adjustment of status was immaterial based on the
plain language of the reinstatement provision and that a waiver under sub-
section (9)(C)(ii) can be obtained only after exiting the country and wait-
ing ten years. Id. at 1163.
Berrum-Garcia also rejected Perez-Gonzalez’s reasoning that
§ 212.2(e) allows applicants for adjustment of status who have been previ-
ously removed or deported to apply for an I-212 waiver within the United
States. Id. at 1167. The Tenth Circuit viewed this regulation as ambiguous,
in that it “only implies that some aliens illegally present in the United
States may apply for an I-212 waiver without leaving the country; it does
not explicitly extend that privilege to aliens who have illegally reentered
the country after a prior deportation or removal.” Id. (emphasis omitted).
Berrum-Garcia also found § 212.2(i)(2) to be ambiguous. Id. While the
regulation refers to “the date on which the alien embarked or reembarked,”
the court noted that the provision could apply to subsection (a)(9)(B)(i)(I),
which provides for a waiver to an unlawfully present alien who had previ-
ously been in the United States for less than one year and voluntarily
departed without being subject to formal removal proceedings. Id.
15436 GONZALES v. DEP’T OF HOMELAND SECURITY
[12] The BIA concluded that 8 C.F.R. § 212.2 could not
reasonably be construed as implementing subsection
(a)(9)(C)(ii)’s waiver provision and could not be reconciled
with the plain language of subsection (a)(9)(C)(ii). 23 I. & N.
Dec. at 875. It disagreed with the reasoning in Perez-
Gonzalez that the statutory ten-year limitation “would not
cover the class of aliens under 8 C.F.R. § 212.2, who have
been previously removed and are currently in this country
prior to seeking permission to reapply.” Id. at 876 (quoting
Perez-Gonzalez, 379 F.3d at 794 n.10). The BIA considered
the more reasonable interpretation of the statutory framework
to be that an alien may not obtain a waiver under subsection
(a)(9)(C)(ii), retroactively or prospectively, without regard to
the ten-year bar. Id. It explained:
Perez-Gonzalez allows an alien to obtain a section
212(a)(9)(C)(ii) waiver nunc pro tunc even though
such a waiver would have been unavailable to him
had he sought it prospectively, thereby placing him
in a better position by asking forgiveness than he
would have been in had he asked permission. Such
an interpretation contradicts the clear language of
section 212(a)(9)(C)(ii) and the legislative policy
underlying section 212(a)(9)(C) generally.
Id.The Tenth Circuit resolved the regulatory ambiguities by examining the
text of the inadmissibility provisions (a)(9)(B) and (C), and the LIFE Act
Amendments of 2000. Id. at 1167-68. The court relied on the LIFE Act
Amendments’ express exemption of Nicaraguans, Cuban, and Haitian
immigrants from inadmissibility under subsection (a)(9)(A) and subsec-
tion (a)(9)(C), and the reinstatement provision, making them eligible to
adjust their status despite being present in the United States after having
been previously removed. Id. at 1168. The Tenth Circuit recognized that,
by expressly exempting these aliens from the reinstatement provision,
Congress understood that subsection (a)(9)(C) posed an obstacle to previ-
ously removed aliens seeking amnesty under the special adjustment provi-
sion. Id.
GONZALES v. DEP’T OF HOMELAND SECURITY 15437
H. Because the BIA’s statutory interpretation in In re
Torres-Garcia is reasonable, it is entitled to Chevron
deference under Brand X
The question, then, is whether we must defer to this ruling
as a reasonable interpretation of the statutes. Plaintiffs urge
that Chevron deference is owed only to the agency’s regula-
tion and not to the BIA’s decision which they contend is con-
trary to the regulation. They also rely on The Fitzgerald
Living Trust v. United States, 460 F.3d 1259, 1264 (9th Cir.
2006) (explaining that Brand X “requires that deference be
given to an agency’s interpretation of a statute unless a prior
court’s decision has held that the statute is incompatible with
the agency’s interpretation”), to argue that Brand X does not
apply because our interpretation in Perez-Gonzalez is incom-
patible with the agency’s interpretation.
The relevant inquiry is not whether we are required to defer
to the agency’s regulation but whether we must now—post In
re Torres-Garcia—defer to that decision as a valid agency
interpretation of the statute. The Supreme Court has accorded
Chevron deference to BIA decisions, and we have followed
suit. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25
(1999); Perez-Enriquez v. Gonzales, 463 F.3d 1007, 1009 (9th
Cir. 2006) (en banc). Plaintiffs’ argument—that the regulation
should be accorded Chevron deference but the administrative
decision interpreting that regulation in the context of the rele-
vant statutory scheme should not be accorded deference—
accordingly fails.
Moreover, plaintiffs are wrong when they assert that our
statutory interpretation in Perez-Gonzalez was “incompatible
with the agency’s interpretation.” Indeed, we relied on the
agency’s interpretation—i.e., its regulation—to support our
interpretation of the statutes in that case. Furthermore, the
reliance on the agency regulation in Perez-Gonzalez does not
prevent deference to In re Torres-Garcia today. Brand X
explained that Chevron deference applies even when “an
15438 GONZALES v. DEP’T OF HOMELAND SECURITY
agency interpretation [ ] was a recent reversal of agency poli-
cy,” 545 U.S. at 982, because “the whole point of Chevron is
to leave the discretion provided by the ambiguities of a statute
with the implementing agency.” Id. at 981 (internal quotation
marks and citations omitted). Therefore, under Chevron and
Brand X we are required to defer to In re Torres-Garcia’s
interpretation of the statutory scheme, regardless of whether
the agency once adhered to a different interpretation.
[13] In In re Torres-Garcia, the BIA held that an applicant
who is inadmissible under subsection (a)(9)(C)(i)(II) is also
ineligible to adjust his status under the special adjustment pro-
vision from within the United States. The alien is bound by
subsection (a)(9)(C)(ii), requiring that he obtain permission to
apply for readmission from outside the United States after ten
years have lapsed from the date of his last departure. The
BIA’s decision is clearly reasonable and is therefore entitled
to Chevron deference under Brand X.
IV
The district court correctly determined that it has jurisdic-
tion over this case and that Fernandez-Vargas does not under-
mine the holding in Perez-Gonzalez that a successful I-212
waiver would avoid the reinstatement provision.14
[14] However, we vacate the district court’s order because
we hold today that we are bound by the BIA’s interpretation
of the applicable statutes in In re Torres-Garcia, even though
that interpretation differs from our prior interpretation in
Perez-Gonzalez. Pursuant to In re Torres-Garcia, plaintiffs as
a matter of law are not eligible to adjust their status because
14
We view the denial of an alien’s I-212 waiver before commencing
reinstatement proceedings as a ministerial act and an inadequate ground to
sustain the preliminary injunction. Should the BIA hold in the future that
a successful I-212 waiver would not avoid the reinstatement provision, a
Brand X analysis of that holding would then be appropriate.
GONZALES v. DEP’T OF HOMELAND SECURITY 15439
they are ineligible to receive I-212 waivers. Accordingly, the
plaintiffs have no likelihood of success on the merits of their
suit, and the preliminary injunction is vacated. See First
Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1385 (9th
Cir. 1987) (holding that a showing of likelihood of success is
essential for a preliminary injunction). The case is remanded
for further proceedings consistent with this opinion.
VACATED AND REMANDED.