Tuesday, October 23, 2012


In Garfias-Rodriguez v Holder, a divided ninth circuit, sitting en banc (latin for "unhappily all together in the same room at the same time" ), issued a complicated opinion with members of the court all over the place joining in parts of the decision and dissenting in other parts.

Judge Bybee wrote the opinion joined by  Judge Fisher, Judge Rawlinson,  Judge Ikuta, Judge Clifton Judge Ikuta and Judge Murguia.

In National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court instructed federal courts to defer to reasonable agency interpretations of ambiguous statutes, even when those interpretations conflict with the prior holding of a federal circuit court. 545 U.S. 967, 982-83 (2005). That is the situation we confront here....
In Acosta v.  Gonzales, 439 F.3d 550, 553-56 (9th Cir. 2006), we held that aliens who are inadmissible under § 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1182(a)(9)(C)(i)(I), are eligible for adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i), in spite of the latter section’s requirement of admissibility. A year later, the Board of Immigration Appeals (“BIA”) decided that such aliens are not eligible to apply for adjustment of status under § 245(i) in In re Briones, 24 I. &  N. Dec. 355, 371 (BIA 2007). ..

In this case, we must decide whether to defer to the agency’s inter- pretation of the INA and overrule Acosta and, if so, whether the agency’s interpretation may be applied to Garfias retroactively.

We conclude that we must defer to the BIA’s decision, and we hold that the BIA’s decision may be applied retroactively to Garfias. We thus deny his petition for review. 
Judge Graber concurred in part and dissented in part.
Judge Reinhardt and Judge Paez joined Judge Graber's dissent.
Judge Paez and Judge Reinhardt also issued a separate dissent.
Judge Gould concurred.

And then there is from Chief Judge Kozinski at page 12626 of the opinion:
"Chief Judge Kozinski, disagreeing with everyone." 
Classic Kozinski.

Hat tip ATL


Anonymous said...

Kozinski is cool. Tripindicular.

Anonymous said...

Jay Bybee, forever a dark footnote in the Bush years