and Submitted October 21, 2015 Pasadena, California.
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. 099-711-900
Florence Weinberg (argued) and Andrew K. Nietor, San Diego,
California, for Petitioner.
A. Morgan (argued) and Gray J. Newkirk, Trial Attorneys; Luis
E. Perez, Senior Litigation Counsel; Office of Immigration
Litigation, Civil Division, Washington, D.C.; for Respondent.
Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,
Circuit Judges, and Michael A. Ponsor, [*] Senior
panel denied Jose Daniel Lemus's petition for review from
the Board of Immigration Appeals' decision retroactively
applying to him the holding in Holder v. Martinez
Gutierrez, 132 S.Ct. 2011 (2012), that an applicant for
cancellation of removal must satisfy the years-of-residence
requirement on his own, without relying on a parent's
contended that Martinez Gutierrez announced a new
rule of law and that, under Chevron Oil Co. v.
Huson, 4040 U.S. 97 (1971), its holding should not be
applied retroactively to him. The panel held that because it
was deferring to the BIA's decision in Matter of
Escobar, 24 I. & N. Dec. 231 (BIA 2007), as directed
by the Supreme Court, rather than adopting a new rule on its
own, the retroactivity analysis set forth in Montgomery
Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir.
1982), applied rather than that of Chevron Oil. The
panel held that the second Montgomery Ward factor,
which favors retroactivity if a party could reasonably
anticipate the change in law, and the third factor, which
examines the extent of reliance upon the former rule, weighed
heavily against Lemus. The panel further found that the fifth
factor favored the government's strong interest in
uniform application of the immigration statutes.
PONSOR, SENIOR DISTRICT JUDGE
Holder v. Martinez Gutierrez, 132 S.Ct. 2011 (2012),
the Supreme Court unanimously held that the Board of
Immigration Appeals ("BIA") permissibly construed
section 240A(a) of the Immigration and Nationality Act, 8
U.S.C. § 1229b(a), when it concluded that an alien
seeking cancellation of removal had to satisfy the
years-of-residence requirement on his own, without relying on
a parent's residential history. Id. at 2014-15.
Petitioner Lemus contends that Martinez Gutierrez
announced a new rule of law and that, under Chevron Oil
Co. v. Huson, 404 U.S. 97 (1971), its holding should not
be applied retroactively to him.
disagree. Lemus's citation of Nunez-Reyes v.
Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), in
support of his argument for prospective application of
Martinez Gutierrez is not persuasive. In
Nunez-Reyes, we applied Chevron Oil's
retroactivity analysis, because we ourselves were explicitly
adopting a new rule, setting aside our own longstanding
circuit precedent. Id. at 692. Where, as here, we
are adopting no new rule on our own, but merely (at the
direction of the Supreme Court) deferring to the BIA,
Chevron Oil's retroactivity criteria are
v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc),
offers a more compelling precedent on the issue of
retroactivity. In that case, we did not announce a new rule
on our own authority, as in Nunez-Reyes, but rather
deferred to a rule previously announced by the BIA, as
Martinez Gutierrez has instructed us to do here.
Garfias-Rodriguez held that in this situation the
proper approach to the issue of retroactivity is set forth in
Montgomery Ward & Co., Inc. v. FTC, 691 F.2d
1322 (9th Cir. 1982). 702 F.3d at 520. Applying
Montgomery Ward, we hold that Martinez
Gutierrez should be applied retroactively. Based on
this, we will deny the petition.
FACTS AND PROCEDURAL HISTORY
Jose Daniel Lemus is a Guatemalan citizen who entered the
United States as a four-year-old in 1993 with his mother. In
2006, after Lemus turned eighteen, he became a legal
permanent resident through his stepfather. On April 3, 2011,
Lemus was crossing by car from Mexico to Calexico, California
when a routine sweep uncovered nearly fifty pounds of
marijuana in his vehicle's rear panels. Lemus was
initially charged with importation of marijuana and held in
custody. On June 7, 2011, he pleaded guilty to one count of
making a materially false statement to a federal officer in
violation of 18 U.S.C. § 1001. On July 1, 2011, he was
sentenced to time served. Four days later, he was transferred
into the custody of the Department of Homeland Security and
was thereafter placed into removal proceedings, charged with
being inadmissible as an alien who was or had been a
trafficker in illicit controlled substances.
proceedings before the IJ, Lemus admitted that he was
involved in drug trafficking and was to be paid $3, 000 for
his thwarted attempt to bring marijuana into the United
States. Nevertheless, he sought relief through an application
for cancellation of removal, a course available to certain
permanent residents. Section 240(A)(a) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1229b(a),
authorizes the Attorney General to cancel the removal of a
person who: "(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years; (2) has
resided in the United States continuously for 7 years after
having been admitted in any status; and (3) has not been
convicted of any aggravated felony."
government argued that Lemus was not eligible for this relief
because he had not fulfilled the seven-year continuous
residency requirement. Lemus acknowledged that he could not
independently satisfy this requirement, since he had only
been a legal resident for approximately five years when he
pleaded guilty to the false statement charge. He argued,
however, that by imputing his ...