Emilio Garcia-Lara v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILIO GARCIA-LARA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-70638
Agency No. A087-041-379
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
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
FILED
MAR 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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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).
13-70638 2

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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.
13-70638 3

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