Opinion
No. 13-70638
03-21-2016
EMILIO GARCIA-LARA, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A087-041-379 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Emilio Garcia-Lara, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from an immigration judge's decision denying adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Garfias-Rodriguez v. Holder, 702 F.3d 504, 512 n.6 (9th Cir. 2012) (en banc). We grant the petition for review and remand.
The agency erred in concluding that the holding in Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007), applied retroactively to render Garcia-Lara ineligible to adjust status. See Acosta-Olivarria v. Lynch, 799 F.3d 1271, 1275-77 (9th Cir. 2015); Garfias-Rodriguez, 702 F.3d at 520 (holding that analysis under Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), is necessary to determine retroactive effect of Briones). Like the petitioner in Acosta-Olivarria v. Lynch, Garcia-Lara applied for adjustment of status in the 21-month window between Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) (permitting adjustment of status for an alien inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I)), and Briones, when it was reasonable for Garcia-Lara to rely on our decision in Acosta. See Acosta-Olivarria, 799 F.3d at 1275-77. As there is no significant factual basis to distinguish Garcia-Lara's situation from the one presented in Acosta-Olivarria for purposes of applying Montgomery Ward, we conclude that the BIA's holding in Briones does not apply retroactively to bar Garcia-Lara's application for adjustment under 8 U.S.C. § 1255(i). Accordingly, we remand to the agency to adjudicate Garcia-Lara's application for adjustment of status under 8 U.S.C. § 1255(i).
In light of this disposition, we do not reach Garcia-Lara's remaining contentions, and we deny the government's motion to remand as moot.
PETITION FOR REVIEW GRANTED; REMANDED.