Aurelio Duran Gonzalez, et al v. U.S. Department of Homeland Se, et al

Filing

FILED OPINION (WILLIAM C. CANBY, BARRY G. SILVERMAN and CONSUELO M. CALLAHAN) AFFIRMED., Judge: CMC Authoring. FILED AND ENTERED JUDGMENT. [7940487]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AURELIO DURAN GONZALES; MARIA
C. ESTRADA; MARIA LUISA
MARTINEZ DE MUNGUIA; IRMA
PALACIOS DE BANUELOS; LUCIA
MUNIZ DE ANDRADE; KARINA
NORIS; ADRIANA POUPARINA,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY and JANET NAPOLITANO,
Secretary of the Department of
Homeland Security,
Defendants-Appellees.





No. 09-35174
D.C. No.
2:06-cv-01411-MJP
OPINION



Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Argued and Submitted
September 21, 2011—San Francisco, California
Filed October 25, 2011
Before: William C. Canby, Jr., Barry G. Silverman, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan

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COUNSEL
Matt Adams (argued), Northwest Immigration Rights Project,
of Seattle, Trina Realmuto, Beth Werlin, American Immigration Law Foundation of Washington D.C., Marc Van Der
Hout, Stacy Tolchin, Van Der Hout, Brigagliano & Nightingale of San Francisco, for the plaintiffs-appellants.
Tony West, Assistant Attorney General, David J. Kline, Elizabeth J. Stevens (argued), and Sherease Pratt, of Washington,
D.C., for the defendants-appellees.

OPINION
CALLAHAN, Circuit Judge:
Aurelio Duran Gonzalez, along with six individuals
(“Plaintiffs”), voluntarily filed applications for adjustment of
status, thus disclosing that they were aliens who had been
removed and had reentered the United States without inspection. They did this in reliance on the Ninth Circuit’s opinion
in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004),
wherein the court purportedly held that individuals like Plaintiffs were eligible for relief. The district court certified Plaintiffs’ proposed class and issued a preliminary injunction.
The government appealed, and in Duran Gonzales v.
Department of Homeland Security, 508 F.3d 1227 (9th Cir.

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2007) (“Duran Gonzales II”), we held that, pursuant to the
Supreme Court’s directions in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967,
981-985 (2005) (“Brand X”), we were compelled to follow
the 2006 opinion by the Board of Immigration Appeals
(“BIA”) in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA
2006). In In re Torres-Garcia, the BIA held that individuals
such as Plaintiffs were not eligible for relief. We held that,
because this was a reasonable interpretation of a statute by the
agency charged with interpreting and enforcing the statute,
and because our prior opinion in Perez-Gonzalez was based
on the statute’s ambiguity, Brand X required that we defer to
the BIA’s interpretation of the statute, even though it was
contrary to our prior interpretation of the statute in PerezGonzalez. Duran Gonzales II, 508 F.3d at 1242.
Accordingly, we vacated the district court’s injunction and
remanded the matter. Our opinion stated that “[p]ursuant to In
re Torres-Garcia, plaintiffs as a matter of law are not eligible
to adjust their status because they are ineligible to receive I212 waivers.” Id. On remand, the district court held that
Duran Gonzales II was binding, declined to allow Plaintiffs
to amend their complaint or the class certification, and dismissed Plaintiffs’ action.
Plaintiffs appeal, arguing that Duran Gonzales II should be
given prospective application only. We affirm the district
court’s dismissal of the action because Duran Gonzales II
applied its ruling to the Plaintiffs, and another three-judge
panel has held that Duran Gonzales II has retroactive application. See Morales-Izquierdo v. Dep’t of Homeland Sec., 600
F.3d 1076, 1086 (9th Cir. 2010).
I
Plaintiffs are individuals who are not citizens of the United
States, who were previously deported or removed from the
United States, and who reentered the United States without

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inspection. After returning to the United States, Plaintiffs
sought to adjust their immigration status by filing applications
for adjustment of status under 8 U.S.C. § 1255. The statute
“allowed the Attorney General to adjust the status of an alien
who had entered the United States without inspection to that
of a legal permanent resident provided that the alien (1) was
admissible to the United States and the beneficiary of an
immediately available immigrant visa, and (2) paid an application fee five times the usual fee.” Duran Gonzales II, 508
F.3d at 1230.
Plaintiffs’ course to adjustment of status, however, was
complicated by two provisions of the Illegal Immigration
Reform and Immigration Responsibility Act of 1996
(“IIRIRA”). The first appeared to deny Plaintiffs relief. Title
8 U.S.C. § 1231(a)(5) provides “for automatic reinstatement
of an alien’s prior removal or deportation order when an alien
has reentered the United States illegally,” and further provides
that the “alien is not eligible and may not apply for any
relief.” Duran Gonzales II, 508 F.3d at 1230.
The second section suggested a possible exception to this
bar. Although 8 U.S.C. § 1182(a)(9)(C)(i) provides that an
alien “who enters or attempts to reenter the United States
without being admitted is inadmissible,” § 1182(a)(9)(C)(ii)
creates an exception for
an alien seeking admission more than 10 years after
the date of the alien’s last departure from the United
States if, prior to the alien’s reembarkation at a place
outside the United States or attempt to be readmitted
from a foreign contiguous territory, the Secretary of
Homeland Security has consented to the alien’s reapplying for admission.
8 U.S.C. § 1182(a)(9)(C)(ii). The exception had two conditions of particular relevance to Plaintiffs: (1) it was only available if made more than 10 years after the alien’s last

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departure; and (2) the application has to be made from outside
the United States.
Plaintiffs, however, found encouragement in our opinion in
Perez-Gonzalez, which held “that the INS committed legal
error when it concluded that Perez-Gonzalez could not apply
for a Form I-212 waiver from within this country.” PerezGonzalez, 379 F.3d at 789. Accordingly, Plaintiffs filed both
I-212 forms seeking relief under § 1182(a)(9)(C)(ii) and
applications for adjustment of status under § 1255(i) with the
United States Citizenship and Immigration Services
(“USCIS”). USCIS denied three of the Plaintiffs’ applications
on the ground that the ten-year period had not elapsed since
the dates of the applicants’ last departures from the United
States.
Plaintiffs then filed their complaint with the United States
District Court for the Western District of Washington. They
argued that USCIS’s position — that an alien’s failure to meet
the ten-year requirement barred a successful I-212 application
— was contrary to Perez-Gonzalez, and sought injunctive and
declaratory relief, a temporary restraining order, and class certification. The district court granted a preliminary injunction
and certified a class. The Department of Homeland Security
filed a timely appeal.
II
[1] On appeal, we were constrained by the Supreme
Court’s opinion in Brand X, 545 U.S. 967, in which the Court
“held that the circuit court must apply Chevron deference to
an agency’s interpretation of a statute regardless of the circuit
court’s contrary precedent, provided that the court’s earlier
precedent was an interpretation of a statutory ambiguity.”
Duran Gonzales II, 508 F.3d at 1235-36. We determined
“that, despite some language to the contrary, Perez-Gonzalez
was based on a finding of statutory ambiguity that left room
for agency discretion.” Id. at 1237. We explained:

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by declining to adhere to the plain language of the
inadmissibility provision and instead falling back on
the regulations, Perez-Gonzalez did not find the
inadmissibility provision, nor the statutory scheme,
to be unambiguous. Accordingly, we are not bound
by Perez-Gonzalez and must defer to In re TorresGarcia if its interpretation of the governing statute is
reasonable.
Id. at 1238-39. We recognized that in deciding In re TorresGarcia the BIA considered various interpretations of the statutes, including our approach in Perez-Gonzalez, and found
“the more reasonable interpretation of the statutory framework to be that an alien may not obtain a waiver under subsection (a)(9)(C)(ii), retroactively or prospectively, without
regard to the ten-year bar.”1 Id. at 1241. We determined that
the BIA’s decision was “clearly reasonable” and entitled to
Chevron deference under Brand X. Id. at 1242.
[2] The final paragraph in Duran Gonzales II states:
we vacate the district court’s order because we hold
today that we are bound by the BIA’s interpretation
1

The BIA reasoned:
Perez-Gonzalez allows an alien to obtain a section
212(a)(9)(C)(ii) waiver nunc pro tunc even though such a waiver
would have been unavailable to him had he sought it prospectively, thereby placing him in a better position by asking forgiveness than he would have been in had he asked permission. Such
an interpretation contradicts the clear language of section
212(a)(9)(C)(ii) and the legislative policy underlying section
212(a)(9)(C) generally. We find that the more reasonable interpretation of the statutory framework discussed above is that an
alien may not obtain a waiver of the section 212(a)(9)(C)(i)
ground of inadmissibility, retroactively or prospectively, without
regard to the 10-year limitation set forth at section
212(a)(9)(C)(ii).

In re Torres-Garcia, 23 I. & N. Dec. at 876.

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of the applicable statutes in In re Torres-Garcia,
even though that interpretation differs from our prior
interpretation in Perez-Gonzalez. Pursuant to In re
Torres-Garcia, plaintiffs as a matter of law are
not eligible to adjust their status because they are
ineligible to receive I-212 waivers. . . . The case is
remanded for further proceedings consistent with
this opinion.
508 F.3d at 1242-43 (emphasis added). Plaintiffs filed a petition for rehearing and suggestion for rehearing which
included an argument that the opinion should not be applied
retroactively. The panel denied the petition for rehearing, and
a majority of the active judges declined the suggestion for
rehearing en banc.
In the district court on remand, Plaintiffs argued that Duran
Gonzales II should be given prospective application only and
not applied to them. They also sought to amend their class
certification to include only those individuals who filed I-212
applications prior to our opinion in Duran Gonzales II.
The district court rejected Plaintiffs’ arguments, denied
their motion to amend class certification, denied their motion
to file an amended complaint, and dismissed the action. The
district court rejected Plaintiffs’ argument against Duran
Gonzales II’s retroactivity because “the Circuit court stated
conclusively that the BIA’s interpretation of the statute
applied to Plaintiffs,” and held that “the retroactive application of In re Torres-Garcia is simply not an open question
before this Court.”2 The court reasoned that allowing Plaintiffs to amend their complaint or to amend their class certification would be futile because neither amendment could
2

Citing Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993),
the district court reasoned that the “Ninth Circuit’s silence on the retroactivity of its decision requires this Court to assume that it carries full retrospective effect.”

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change the presumptive retroactive effect of Duran Gonzales
II. Plaintiffs filed this timely appeal.
III
Following our remand in Duran Gonzales II, we issued two
opinions that bear on our consideration of this appeal:
Morales-Izquierdo, 600 F.3d 1076, and Nunez-Reyes v.
Holder, 646 F.3d 684 (9th Cir. 2011) (en banc).
A.

Morales-Izquierdo v. Holder

Raul Morales, a citizen of Mexico, illegally entered the
United States in 1990. After being arrested by the INS, Morales was ordered removed in 1994 and was actually removed
to Mexico in 1998. 600 F.3d at 1079. He subsequently reentered the United States, again without inspection, in 2001. Id.
After being removed but before reentering, Morales married
a United States citizen. Id. Following his reentry without
inspection, Morales sought to adjust his status through his
citizen-wife. Id. In 2003, Morales was taken into custody, his
application for adjustment of status was denied, and a Notice
of Intent to/Decision to Reinstate Prior Order (on the basis of
his 1998 removal) was issued. Id. at 1079-80.
Morales filed several petitions seeking review of these
actions. We granted his initial petition for review of the reinstatement order. Morales-Izquierdo v. Ashcroft, 388 F.3d
1299 (9th Cir. 2004). Further litigation ensued, however, and
when his case was again before us in 2010, one of the issues
was whether Duran Gonzales II applied to his situation. We
explained:
Morales argues that even though he did not file an
application for a Form I-212 waiver when he applied
for adjustment of status in 2001, errors of the INS
entitle him to have his subsequently-filed Form I212 waiver application treated as if it were timely

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filed in 2001. Morales has a problem, however: The
current law of our circuit provides that a Form I-212
waiver, even if granted, does not cure the inadmissibility of an alien who reenters the United States
without inspection after a prior removal. Gonzales,
508 F.3d at 1242; see also 8 U.S.C.
§ 1182(a)(9)(C)(ii). Morales concedes that if the
holding in Gonzales applies to him, he cannot cure
the deficiency in his adjustment-of-status application. Morales nonetheless argues that Gonzales —
decided six years after Morales filed his first
adjustment-of-status application and four years after
his second — cannot be applied retroactively to
make him ineligible for a waiver of inadmissibility.
He argues that under the law that was established in
our circuit prior to Gonzales, a Form I-212 waiver
could cure his inadmissibility, that he was eligible
for such a waiver, and that our prior law should
apply to him.
Morales-Izquierdo, 600 F.3d at 1086.
In rejecting Morales’s argument, we started with the standard that “[o]rdinarily, ‘[a] judicial construction of a statute
is an authoritative statement of what the statute meant before
as well as after the decision of the case giving rise to that construction.’ ” Id. at 1087-88 (quoting Rivers v. Roadway
Express, Inc., 511 U.S. 298, 312-13 (1994)). We further commented that “[t]hus, when a court applies a statute to the parties before it, ‘that rule is the controlling interpretation of
federal law and must be given full retroactive effect in all
cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the]
announcement of the rule.’ ” Id. at 1088 (quoting Harper v.
Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993)).
We rejected Morales’s argument that Duran-Gonzales II

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was similar to an agency decision and its retroactivity should
be evaluated pursuant to a multi-factor standard.3 We held:
Yet, whatever disputes on theory of statutory interpretation may be sparked, we conclude that the interpretation of the INA that we adopted in Gonzales
renders Morales ineligible for a Form I-212 waiver.
True, Gonzales declared the INA ambiguous and
deferred to the BIA’s interpretation of the INA for
the purpose of determining what the statute means.
But statutory ambiguity alone has never been sufficient to render judicial interpretation of a statute
non-retroactive. Gonzales is still a judicial decision
interpreting a statute, and courts remain “the final
authority on issues of statutory construction.” Chevron, 467 U.S. at 843 n.9, . . . . Under Gonzales, 8
U.S.C. § 1182(a)(9)(C)(ii) renders aliens in Morales’s position ineligible for waiver of the ten-year
3

We described Morales’s argument as follows:
According to Morales, our decision in Gonzales does not establish a definitive interpretation of what the INA has always meant,
but rather that Congress has created a “gap” in the INA and delegated authority to DHS to fill in the gap. Morales argues, then,
that the question is not whether our decision in Gonzales applies
retroactively, but rather whether the BIA’s interpretation of the
INA in Torres-Garcia applies retroactively, because it is TorresGarcia that gives content to the gap in 8 U.S.C. § 1182(a)(9)(C).
And unlike a judicial decision, a decision made by an administrative agency acting in an adjudicatory capacity does not necessarily apply retroactively. See, e.g., Montgomery Ward & Co., Inc.
v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982) (“[W]hen a new
problem is presented to an administrative agency, the agency may
act through adjudication to clarify an uncertain area of the law,
so long as the retroactive impact of the clarification is not excessive or unwarranted.”). Therefore, Morales contends, we must
conduct a multi-factor retroactivity analysis to determine whether
or not the rule of Torres-Garcia applies to him. See, e.g., MiguelMiguel v. Gonzales, 500 F.3d 941, 951 (9th Cir. 2007).

Morales-Izquierdo, 600 F.3d at 1088.

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bar. See Gonzales, 508 F.3d at 1242. That rule is dispositive and wholly scuttles the argument of Morales. Whatever the adjudicative history preceding
Gonzales, and whatever the tools used in Gonzales
to interpret the statute, a statute can have only one
meaning, and Gonzales tells us what that meaning is.
Morales-Izquierdo, 600 F.3d at 1089.
Our reasoning led us to reject Morales’s request for “a nunc
pro tunc Form I-212 waiver to cure his inadmissibility and
make him eligible for adjustment of status.” Id. at 1090. We
held that “the law of our circuit in Gonzales explicitly and
without apology holds that 8 U.S.C. § 1182(a)(9)(C) . . . does
not permit such waivers.” Id. at 1091. We concluded that the
statute and our precedent were controlling and that “a Form
I-212 waiver cannot cure Morales’s inadmissibility until the
expiration of the ten-year bar.” Id.
B.

Nunez-Reyes v. Holder

Flavio Nunez-Reyes entered the United States in 1992 and
in 2001 was charged in state court with a felony count and a
misdemeanor count involving methamphetamine. He pled
guilty to both counts and the state court subsequently dismissed the charges under a state provision wherein courts
were directed to set aside convictions and dismiss indictments
should a defendant successfully complete a drug treatment
program along with other conditions. Under the California
provision, “both the arrest and the conviction shall be deemed
never to have occurred.” Nunez-Reyes, 646 F.3d at 687. In
2002, the federal government found Nunez-Reyes removable,
and his applications for adjustment of status and petition for
cancellation of removal were denied by the BIA. Id.
The en banc panel first overruled our prior decision in
Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and
held “that the constitutional guarantee of equal protection

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does not require treating, for immigration purposes, an
expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the” Federal First Offender Act. Nunez-Reyes, 646 F.3d at 690.
The panel, however, determined that this holding “will
apply only prospectively.”4 Id. at 694. The panel recognized
that the “default principle is that a court’s decisions apply
retroactively to all cases still pending before the courts.” Id.
at 690. However, “courts may depart from that default principle only in certain circumstances, as outlined in” Chevron Oil
Co. v. Hudson, 404 U.S. 97 (1971). Nunez-Reyes, 646 F.3d at
690. Before applying the Chevron Oil factors, the panel noted
that “a court announcing a new rule of law must decide
between pure prospectivity and full retroactivity.” Id. (citing
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 53738 (1991) (Souter J., plurality opinion)).
The panel identified the Chevron Oil factors as: “(1)
whether the decision establish[es] a new principle of law; (2)
whether retrospective operation will further or retard [the
rule’s] operation in light of its history, purpose, and effect;
and (3) whether our decision could produce substantial inequitable results if applied retroactively.” Nunez-Reyes, 646
F.3d at 692 (internal quotation marks and citation omitted).
The panel found that there was no question that its ruling
established a new principle of law. Id. It next determined that
the retroactive application of its decision created the potential
for unfairness, explaining:
Those aliens were assured that, after completion of
drug treatment, there would be absolutely no legal
consequences. Their waiver of their constitutional
4

The panel explained that “[f]or those aliens convicted before the publication date of this decision, Lujan-Armendariz applies. For those aliens
convicted after the publication date of this decision, Lujan-Armendariz is
overruled.” 646 F.3d at 694.

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rights was in reliance on Lujan-Armendariz. In these
circumstances, we easily conclude that the third
Chevron Oil factor is met: our decision “could produce substantial inequitable results if applied retroactively.” Chevron Oil, 404 U.S. at 107 . . . . It
would be manifestly unfair effectively to hoodwink
aliens into waiving their constitutional rights on the
promise of no legal consequences and, then, to hold
retroactively that their convictions actually carried
with them the “particularly severe ‘penalty’ ” of
removal, Padilla, 130 S. Ct. at 1481 . . . .
Nunez-Reyes, 646 F.3d at 693-94. Finally, the panel concluded that the second Chevron Oil factor was met: “retroactive application will not further the rule’s operation.” Id. at
694. The court reasoned that “Congress did not intend adverse
immigration consequences for those who were merely
charged with a crime or suspected of a crime.”5 Id.
5

The panel explained:
Relevant here, we think it is a reasonable assumption that Congress intended adverse immigration consequences only for those
who were convicted either after the exercise of their constitutional rights, such as the right to trial, or after an informed waiver
of those constitutional rights. As discussed above, many alien
defendants fell into neither category. Instead, they pleaded guilty
and waived their constitutional rights with a wholly uninformed
understanding of the consequences of their plea. Contrary to their
understanding that there would be no immigration consequences,
the actual consequence is the severe penalty of removal. Nothing
in the statute or its history, purpose, or effect suggests that Congress intended adverse immigration consequences for those
whose waiver of constitutional rights turned out to be so illinformed. Indeed, the Supreme Court has instructed that such a
gross misunderstanding of the immigration consequences of a
plea, when caused by incompetent counsel, rises to the level of
a constitutional violation. Padilla, 130 S. Ct. at 1486-87.

Nunez-Reyes, 646 F.3d at 694 (emphases in original).

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As explained in the next section, the principles set forth in
Morales-Izquierdo and Nunez-Reyes require that we affirm
the district court’s dismissal of Plaintiffs’ complaint.
IV
Although the district court’s denial of leave to amend is
reviewed for abuse of discretion, Gardner v. Martino, 563
F.3d 981, 990 (9th Cir. 2009), as is an order on class certification, Parra v. Bashas’, Inc., 536 F.3d 975, 977 (9th Cir.
2008), the essence of Plaintiffs’ appeal is that the district
court erred in holding that Duran Gonzales II applied to them.
This underlying conclusion of law is reviewed de novo. See
Citizens for Clean Gov’t v. City of San Diego, 474 F.3d 647,
650 (9th Cir. 2007).
On appeal, Plaintiffs assert that the district court erred in
holding that Duran Gonzales II applied retroactively to all
class members and in failing to independently determine
whether it should be applied to them. We disagree and hold
that the district court could not have determined that Duran
Gonzales II applied prospectively only and hold that we are
unable to give Duran Gonzales II only prospective application.
A.

The District Court Could Not Determine That
Duran Gonzales II Applies Prospectively Only.

[3] We reiterated in Nunez-Reyes that the “default principle is that a court’s decisions apply retroactively to all cases
still pending before the courts.” 646 F.3d at 690; see also
Harper, 509 U.S. at 97. Furthermore, we continue to adhere
to the Supreme Court’s admonishment that if a decision is not
to be given retroactive effect, its prospective-only application
should be announced in the opinion itself. In Harper, the
Supreme Court stated:
When this Court does not “reserve the question
whether its holding should be applied to the parties

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before it,” however, an opinion announcing a rule of
federal law “is properly understood to have followed
the normal rule of retroactive application” and must
be “read to hold . . . that its rule should apply retroactively to the litigants then before the Court.”
509 U.S. at 97-98 (quoting Beam, 501 U.S. at 539); see also
United States v 20832 Big Rock Drive, 51 F.3d 1402, 1406
(9th Cir. 1995) (holding that “it is now clear that a new rule
of law applies retroactively to civil cases on direct review or
those not yet final if it is applied to the parties in the case in
which it is announced”).
[4] Thus, Duran Gonzales II would have retroactive application even if it did not address retroactivity. But it was not
silent. The final paragraph held that “plaintiffs as a matter of
law are not eligible to adjust their status because they are ineligible to receive I-212 waivers.” Duran Gonzales II, 508 F.3d
at 1242. Because this court applied its holding in Duran Gonzales II to the parties before it, the ruling is retroactive.
[5] Moreover, Plaintiffs have not cited any authority, nor
have we found any, that would allow a district court to interpret, in the first instance, whether a Ninth Circuit opinion
applied prospectively only or retroactively. Rather, the general rule is that:
On remand, a trial court may not deviate from the
mandate of an appellate court. As we have stated
earlier, “[w]hen a case has been decided by an appellate court and remanded, the court to which it is
remanded must proceed in accordance with the mandate and such law of the case as was established by
the appellate court.” Firth v. United States, 554 F.2d
990, 993 (9th Cir.1977); . . . . The Supreme Court
long ago emphasized that when acting under an
appellate court’s mandate, an inferior court “cannot
vary it, or examine it for any other purpose than exe-

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cution; or give any other or further relief; or review
it, even for apparent error, upon any matter decided
upon appeal; or intermeddle with it, further than to
settle so much as has been remanded.” In re Sanford
Fork & Tool Co., 160 U.S. 247, 255 . . . (1895).
Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1337 (9th
Cir. 1984). Here, the district court properly determined that
Duran Gonzales II applied retroactively to Plaintiffs.
B.

This Panel May Not Now Rule That Duran
Gonzales II Applies Only Prospectively And Not
Retroactively.

Even if Duran Gonzales II could be read as not clearly
holding that it had retroactive application (by applying its ruling to the parties before it), the fact that Duran Gonzales II
did not otherwise “reserve the question whether its holding
should be applied to the parties before it” would be dispositive. See Harper, 509 U.S. at 97-98. It is now too late to apply
Duran Gonzales II prospectively only. Since its announcement in 2007, the “normal rule of retroactive application” has
applied and presumably Duran Gonzales II has been routinely
applied by district courts and the BIA in other cases. Indeed,
Duran Gonzales II has been cited approvingly by two other
circuit courts. See Delgado v. Mukasey, 516 F.3d 65, 73 (2d
Cir. 2008), and Gonzalez-Balderas v. Holder, 597 F.3d 869,
870 (7th Cir. 2010).
[6] Furthermore, our opinion in Morales-Izquierdo, 600
F.3d 1076, held that Duran Gonzales II applies retroactively,
and we are bound by that decision. See Santamaria v. Horsley, 110 F.3d 1352, 1355 (9th Cir. 1997) (“It is settled law
that one three-judge panel of this court cannot ordinarily
reconsider or overrule the decision of a prior panel.”). The
Morales-Izquierdo court fully considered retroactivity. It
commented that “[w]hatever the adjudicative history preceding Gonzales, and whatever the tools used in Gonzales to

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interpret the statute, a statute can have only one meaning, and
Gonzales tells us what that meaning is.” Morales-Izquierdo,
600 F.3d at 1089. The court concluded that “Gonzales is ultimately a judicial interpretation of a federal statute,” and
despite Morales’s “sense of unfairness engendered by the
retrospective application of a new judicial interpretation of an
old statute[,] . . . when a court interprets a statute, even an
ambiguous one, and even when that interpretation conflicts
with the court’s own prior interpretation, the new interpretation is treated as the statute’s one-and-only meaning.” Id. at
1090 (citing Griffith v. Kentucky, 479 U.S. 314, 323 (1987)).
Accordingly, we held that Duran Gonzales II applied to
Morales and “to all cases currently on direct review.”
Morales-Izquierdo, 600 F.3d at 1092.
Plaintiffs attempt to distinguish Morales-Izquierdo on the
ground that Morales’s reliance on Perez-Gonzalez was not as
reasonable as Plaintiffs’ reliance. The argument is not well
taken. In Nunez-Reyes, we reaffirmed that “a court announcing a new rule of law must decide between pure prospectivity
and full retroactivity,” and, citing Justice Souter’s plurality
opinion in James B. Beam Distilling Co., 501 U.S. at 537-38,
confirmed that weighing “the equities on a case-by-case
basis[ ] is foreclosed.” 646 F.3d at 690-91. Thus, MoralesIzquierdo’s holding of retroactivity cannot be distinguished
on the ground that Morales’s alleged reliance on PerezGonzalez was somehow less serious or reasonable than Plaintiffs’ reliance on the opinion.
[7] Duran Gonzales II specifically applied its ruling to the
petitioners before it and in Morales-Izquierdo, a separate
three-judge panel confirmed that Duran Gonzales II applies
retroactively; we are bound by these decisions. It follows that
the holding in Duran Gonzales II that “plaintiffs as a matter
of law are not eligible to adjust their status because they are

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ineligible to receive I-212 waivers,” 508 F.3d at 1242, applies
to Plaintiffs and undermines their legal action.6
Finally, because we determine that we cannot retroactively
revise Duran Gonzales II to have only prospective application, we need not determine whether we would limit Duran
Gonzales II to prospective application if we could. We note,
however, that the situation in Nunez-Reyes is distinct from
that presented in this appeal. In Nunez-Reyes, the petitioner
and others similarly situated waived constitutional rights in
reliance on our prior opinion. We stressed that it “would be
manifestly unfair effectively to hoodwink aliens into waiving
their constitutional rights on the promise of no legal consequences and, then, to hold retroactively that their convictions
actually carried with them the particularly severe penalty of
removal.” Nunez-Reyes, 646 F.3d at 694 (internal quotation
marks omitted). Here, the Plaintiffs, in relying on PerezGonzalez, did not waive any constitutional right, although
they did disclose to the government their illegal presence
within the country. Whatever weight might be given to such
reliance, it is considerably less than that given to the waiver
of a constitutional right.7
6

This determination also governs Plaintiffs’ motions to file an amended
complaint and to amend their class certification because neither amendment could overcome or circumvent the legal determinations in Duran
Gonzales II.
7
The Supreme Court’s opinion in Fernandez-Vargas v. Gonzales, 548
U.S. 30 (2006), tends to undercut the weight accorded this reliance. The
Court noted:
it is the conduct of remaining in the country after entry that is the
predicate action; the statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country. It is therefore the alien’s choice to
continue his illegal presence, after illegal reentry and after the
effective date of the new law, that subjects him to the new and
less generous legal regime, not a past act that he is helpless to
undo up to the moment the Government finds him out.
Id. at 44.

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V
[8] Plaintiffs’ request for relief from the retroactive application of Duran Gonzales II to their applications for adjustment of status must be denied because: (1) Duran Gonzales
II itself applied its rulings to the Plaintiffs, thus giving the
opinion retroactive application; and (2) another three-judge
panel has reaffirmed that Duran Gonzales II has retroactive
application. Morales-Izquierdo, 600 F.3d at 1092. The district
court properly determined that Duran Gonzales II applies
retroactively and that, accordingly, Plaintiffs are “ineligible to
receive I-212 waivers.” Duran Gonzales II, 508 F.3d at 1242.
The district court’s orders denying Plaintiffs’ motions to
amend class certification and to file an amended complaint,
and dismissing this action, are AFFIRMED.