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Lemus v. Lynch

United States Court of Appeals, Ninth Circuit

November 16, 2016

Jose Daniel Lemus, Petitioner,
v.
Loretta E. Lynch, Attorney General, Respondent.

          Argued and Submitted October 21, 2015 Pasadena, California.

         On 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.

          Carmel 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 District Judge.

         SUMMARY[**]

         Immigration

         The 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 residential history.

         Petitioner 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.

          OPINION

          PONSOR, SENIOR DISTRICT JUDGE

         In 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.

         We 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 inapplicable.

         Garfias-Rodriguez 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.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner 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.

         In 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."

         The 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.[1] He argued, however, that by imputing his ...


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