NIJC filed an amicus brief before the Court of Appeals for the Ninth Circuit in support of Francisco Garfias Rodriguez, a Mexican man whose removal order based on the INA § 212(a)(9)(C) permanent bar was sustained by the Board of Immigration Appeals (“BIA”) despite the fact that he is married to a United States citizen wife and is the beneficiary of a prior visa petition that would qualify him for penalty fee adjustment. The case is Garfias-Rodriguez v. Holder, 649 F.3d 942 (9th Cir. 2011), reh’g granted.
Mr. Garfias first entered the United States in 1996. He left and returned to the United States twice; first in 1999 and then again in 2001. He applied for lawful permanent residency through his citizen wife but was denied because the government determined he was barred from receiving residency due to his multiple unauthorized entries following the accrual of at least a year of unlawful presence in the United States as described at INA § 212(a)(9)(C).
Mr. Garfias argued that though he may be subject to 212(a)(9)(C), he benefits from INA §245(i), which allows certain immigrants to adjust status upon payment of a fine despite having previously violated the immigration code. Mr. Garfias also argued that a BIA precedent decision holding that 212(i) does not trump 212(a)(9)(C) should not be applied retroactively to him. He further challenged regulations that dictate that voluntary departure terminate upon the filing of an appeal.
The Ninth Circuit ruled against Mr. Garfias on all points in a decision issued in April of 2011. Mr. Garfias sought en banc rehearing, which was granted by the Court.
NIJC filed its amicus brief following the grant of rehearing. NIJC argues that 212(a)(9)(C) does not preclude consular processing. This means that even if individuals subject to 212(a)(9)(C) cannot adjust status in the United States, they should nonetheless remain eligible to seek status through an American consular post abroad.
This case was argued on June 20, 2012. On October 19, 2012, the Ninth Circuit denied rehearing in a published decision.