History and Decision Re: Duran-Gonzales

It appears that the Ninth Circuit said “no” to the Duran-Gonzales court case.

A link to the case is available here: http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/09-35174.pdf

The essential holding of this Ninth Circuit case is long and involved.

History Leading up to the Duran-Gonzales Decision

2001: In Perez-Gonzalez v. Ashcroft, the 9th Circuit held an alien could seek adjustment of status (AOS) with a Form I-212 waiver for a prior deportation/removal order with DHS (and EOIR).

2007: In Duran-Gonzales v. DHS, the 9th Circuit overruled the Perez-Gonzalez decision choosing instead to rely on the Board’s decision in Matter of Torres-Garcia which essentially held that DHS (and EOIR) could not grant a Form I-212 waiver inside the U.S., but could only grant this type of form abroad. The Duran-Gonzales case began by way of a District Court action filed by attorneys for aliens who were being denied consideration of their Form I-212 waivers by DHS pursuant to a DHS Memo that instructed them not to consider any Form I-212 waivers despite Perez-Gonzalez.

2010: In Morales-Izquierdo v. Holder, the alien was challenging a reinstatement order that was reinstating a prior deportation/removal order. The attorney argued that the alien should be able to file a late Form I-212 waiver because the alien was eligible to adjust status. In essence, it was argued that the Duran-Gonzales case should not apply to the alien retroactively. In its precedential holding, 9th Circuit holds that the reinstatement order is valid, and also finds that there is no error in applying Duran-Gonzales retroactively. Looking back at the arguments, the Morales-Izquierdo case may not have been the best case to raise the retroactivity argument.

10/25/2011: In Duran-Gonzales II, the 9th Circuit rejects the argument that the first Duran-Gonzales case should not apply retroactively to aliens who filed for adjustment with a Form I-212 waiver after the Perez-Gonzalez case but before the new change in the law announced in the first Duran-Gonzales. Here, the recent case of Nunez-Reyes v. Holder (en banc) was cited as support for the argument not to apply Duran-Gonzales retroactively. The 9th Circuit rejected the argument and again affirmed that Duran-Gonzales applies both prospectively and retroactively. The Duran-Gonzales II court found that it was bound by the panel’s decision in Morales-Izquierdo, and also seemed to be concerned with a sudden change in the retroactive application of Morales-Izquierdo as there had been other 9th Circuit and BIA decisions that had already cited to it and applied it retroactively since 2007 when the case was first decided. Lastly, the Duran-Gonzales II court distinguished Nunez-Reyes because in that case there were aliens who had waived their constitutional rights when pleading guilty in reliance of the old Lujan-Armendariz rule, whereas the Duran-Gonzales II court found no constitutional violation in this case.

Conclusion: Unless the 9th Circuit grants a petition for en banc rehearing and the panel decision is reversed, it appears that the argument that your client should be able to file a Form I-212 waiver in the U.S. will no longer be effective. While many will argue that this is an unfair decision, it looks like this is what the decision will be for the time being.