Acosta-Olivarria v. Lynch

To determine whether Briones applies retroactively to an applicant for adjustment of status under 8 U.S.C. § 1255(i), the Montgomery Ward five-factor balancing test must be applied on a case-by-case basis

Gilberto Acosta-Olivarria was arrested for illegal entry and was placed in removal proceedings. In the interim, Acosta-Olivarria applied for adjustment of status under 8 U.S.C. § 1255(i), wherein, at the time, allowed persons who had been present illegally in the U.S. for more than a year, but who were eligible for a visa, to apply for an adjustment of status to become a legal permanent resident. Based on his wife’s permanent-resident status, Acosta-Olivarria was eligible for a visa. An immigration judge (IJ) considered Acosta-Olivarria application and determined that he was still eligible and thus granted discretionary relief. The IJ relied on the Ninth Circuit Court’s decision Acosta v. Gonzales, which permitted such relief regardless of being inadmissible under § 1182(a)(9)(C)(i)(I). Thereafter, the Department of Homeland Security appealed the IJ’s decision to the Board of Immigration Appeals (BIA). Prior to ruling on the appeal, the BIA ruled on In re Briones, which held that an “alien who is inadmissible under § 1182(a)(9)(C)(i)(I) is not eligible for adjustment of status under § 1255(i).” Therefore, based on Briones, the BIA remanded Acosta-Olivarria’s case to the IJ and his application was denied. Soon after, the Ninth Circuit Court overruled Acosta in Garfias-Rodriguez because of the BIA’s decision in Briones. On appeal, the Ninth Circuit granted Acosta-Olivarria’s petition for review and remanded the case with instructions to reinstate the order granting adjustment of status. The panel reasoned that, to determine whether Briones applied retroactively to an applicant for adjustment of status, the Montgomery Ward five-factor balancing test must be applied on a case-by-case basis. The panel weighed all the factors and found that Acosta-Olivarria reasonably relied on the law in effect at the time he applied and the burden retroactivity would impose on him outweighed the interest in uniform application of the immigration laws. REMANDED.