Jose Garcia-Martinez v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE MARIA GARCIA-MARTINEZ, No. 16-72940

Petitioner,

Agency No.

v. A091-071-827

JEFFERSON B. SESSIONS III, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 15, 2018

San Francisco, California

Filed April 9, 2018

Before: Ferdinand F. Fernandez, M. Margaret McKeown,

and Julio M. Fuentes,* Circuit Judges.

Opinion by Judge Fernandez

*

The Honorable Julio M. Fuentes, United States Circuit Judge for the

U.S. Court of Appeals for the Third Circuit, sitting by designation.

2 GARCIA-MARTINEZ V. SESSIONS

SUMMARY**

Immigration

The panel granted Jose Maria Garcia-Martinez’s petition

for review of a decision of the Board of Immigration Appeals,

holding that the BIA erred in concluding that Garcia’s

Oregon theft convictions were crimes involving moral

turpitude, and remanded.

Garcia was a lawful permanent resident at the time of his

convictions, and the BIA found him removable, under

8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of

two or more crimes involving moral turpitude, not arising out

of a single scheme of criminal misconduct.

The panel noted that the Oregon theft offenses for which

Garcia was convicted did not require a permanent taking of

property. Therefore, the panel concluded that, at the time

Garcia committed the offenses, they were not crimes

involving moral turpitude because for many decades the BIA

had required a permanent intent to deprive in order for a theft

offense to be a crime involving moral turpitude.

The panel observed that in In re Diaz-Lizarraga, 26 I. &

N. Dec. 847 (BIA 2016), the BIA changed the law by no

longer requiring a permanent intent to deprive in this context.

However, the panel rejected the government’s argument that

this new rule should be applied retroactively to Garcia,

concluding that the balance of retroactivity factors weighed

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GARCIA-MARTINEZ V. SESSIONS 3

heavily in his favor: 1) this was not a case of first impression;

2) the decision to abandon the literally-permanent deprivation

test was a rather abrupt change in the law; 3) an alien in

Garcia’s position would rely on the BIA’s prior rule; and 4)

the new rule would impose a new and severe burden upon

Garcia, who would be removed from this country and his

family after living here for over thirty years. Accordingly,

the panel concluded that Garcia’s removal order must be set

aside.

COUNSEL

Lochlan F. Shelfer (argued) and Jeremy M. Christiansen,

Gibson Dunn & Crutcher LLP, Washington, D.C., for

Petitioner.

Imran R. Zaidi (argued), Trial Attorney; Julie M. Iversen,

Senior Litigation Counsel; Stephen J. Flynn, Assistant

Director; Chad A. Readler, Acting Assistant Attorney

General; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

Jennifer Lee Koh, Immigration Clinic, Western State College

of Law, Irvine, California; Kari Hong, Ninth Circuit

Appellate Program, Boston College Law School, Newton,

Massachusetts; for Amici Curiae Immigration Law Professors

and Clinicians.

4 GARCIA-MARTINEZ V. SESSIONS

OPINION

FERNANDEZ, Circuit Judge:

Jose Maria Garcia-Martinez, a native and citizen of

Mexico and a lawful permanent resident of the United States,

petitions for review of the Board of Immigration Appeals’

(BIA) determination that he was removable because he had

been convicted of two (actually three) crimes involving moral

turpitude (hereafter “CIMT”). See 8 U.S.C.

§ 1227(a)(2)(A)(ii). Those were crimes of theft committed in

the State of Oregon. See Or. Rev. Stat. § 164.015; see also

Or. Rev. Stat. § 164.005(1)(a), (2)(a). We grant the petition.

BACKGROUND

Garcia became a lawful permanent resident of the United

States on December 1, 1990. Thereafter, he incurred three

convictions that are relevant to this petition for review: a

conviction on March 8, 2007, for second degree theft in

violation of Oregon Revised Statutes section 164.045; a

conviction on December 31, 2012, for third degree theft in

violation of Oregon Revised Statutes section 164.043; and a

conviction on March 7, 2013, for third degree theft in

violation of Oregon Revised Statutes section 164.043. All

three convictions were based upon guilty pleas.

The Department of Homeland Security (DHS) ultimately

alleged that those were CIMTs. As a result, he was

removable because he had been convicted of “two or more

crimes involving moral turpitude, not arising out of a single

scheme of criminal misconduct.” 8 U.S.C.

§ 1227(a)(2)(A)(ii). On March 15, 2016, in a written

decision, the Immigration Judge (IJ) agreed that on the basis

GARCIA-MARTINEZ V. SESSIONS 5

of those convictions, Garcia was removable. See id. The IJ

also denied Garcia’s application for cancellation of removal.

See 8 U.S.C. § 1229b(a).1 On August 18, 2016, the BIA also

agreed that Garcia’s crimes were CIMTs. This petition

followed.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252.

Where, as here, the BIA agrees with the IJ’s reasoning,

we review both decisions. See Kumar v. Holder, 728 F.3d

993, 998 (9th Cir. 2013); see also Ai Jun Zhi v. Holder,

751 F.3d 1088, 1091 (9th Cir. 2014). Whether a crime is a

CIMT is a question of law. See Uppal v. Holder, 605 F.3d

712, 714 (9th Cir. 2010). We review “de novo the BIA’s

determination of purely legal questions, including the BIA’s

interpretation of the Immigration and Nationality Act.”

Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir. 1999). However,

we do so with appropriate deference. See, e.g., Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

843–44, 104 S. Ct. 2778, 2781–82, 81 L. Ed. 2d 694 (1984);

Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161,

164, 89 L. Ed. 124 (1944); see also Castrijon-Garcia v.

Holder, 704 F.3d 1205, 1208 (9th Cir. 2013); Edu v. Holder,

624 F.3d 1137, 1142–43 (9th Cir. 2010).

1

In Garcia’s petition to this court, he does not argue that the BIA

erred in determining that he is not entitled to cancellation of removal.

Thus, the issue is not before us.

6 GARCIA-MARTINEZ V. SESSIONS

DISCUSSION

In order to decide if a conviction was for a CIMT we must

determine the elements of the crime under the law of the state

where a person was convicted. Here, of course, that is the

law of the State of Oregon regarding theft. Then, we must

see if that meets the definition of a CIMT for purposes of

8 U.S.C. § 1227(a)(2)(A)(ii).

In the State of Oregon, a person is guilty of theft “when,

with intent to deprive another of property or to appropriate

property to the person . . . , the person: (1) [t]akes,

appropriates, obtains or withholds such property from an

owner thereof.” Or. Rev. Stat. § 164.015. “‘Appropriate’ . . .

means to: . . . Exercise control over property of another, . . .

permanently or for so extended a period or under such

circumstances as to acquire the major portion of the economic

value or benefit of such property . . . .” Id. § 164.005(1)(a).

Similarly: “‘Deprive’ . . . means to: . . . Withhold property of

another or cause property of another to be withheld from that

person permanently or for so extended a period or under such

circumstances that the major portion of its economic value or

benefit is lost to that person . . . .” Id. § 164.005(2)(a).

Notably, the statutory scheme does not require a permanent

taking of the property in question; something less than that

will do. In fact, it can be quite a bit less; it can be a mere

temporary taking. See State v. Christine, 93 P.3d 82, 84, 87

(Or. Ct. App. 2004) (where a van and cell phone were taken

for a relatively short time and then abandoned when the

thieves changed vehicles, that was enough to constitute theft);

see also State v. Browning, 386 P.3d 192, 193 (Or. Ct. App.

2016) (holding that “the term ‘take’ applies to the exercise of

dominion or control over property for one’s own use . . . ,

regardless of whether the dominion or control is intended to

GARCIA-MARTINEZ V. SESSIONS 7

be temporary or permanent”). The Oregon statutory

provisions in question are “indivisible.” See Or. Rev. Stat.

§ 164.025; State v. Cox, 82 P.3d 619, 623–24 (Or. 2003).

Because resolution of this case turns on whether Garcia

committed CIMTs, we must determine if Garcia’s thefts in

Oregon were CIMTs. At the time he committed them, they

were not CIMTs because for many decades (at least since

19472) the BIA had held that “a theft offense categorically

involves moral turpitude if—and only if—it is committed

with the intent to permanently deprive an owner of

property.”3 We agreed. See Almanza-Arenas v. Lynch,

815 F.3d 469, 476 (9th Cir. 2016) (en banc). At argument,

the government also agreed with that assessment, and

properly so. In fact, the BIA recently said that was the rule.

See Diaz-Lizarraga, 26 I. & N. Dec. at 849. But it went on to

say more. It declared that “a theft offense is a crime

involving moral turpitude if it involves an intent to deprive

the owner of his property either permanently or under

circumstances where the owner’s property rights are

substantially eroded.” Id. at 853. It frankly admitted that it

was changing the law, but stated “we conclude that our early

jurisprudence does not provide us with good reasons to

persist in the rule that moral turpitude requires a taking

involving a literally permanent intended deprivation.” Id.

And, finally, “to the extent that any of our prior decisions

have required a literal intent to permanently deprive in order

for a theft offense to be a crime involving moral turpitude,

2

In re R–, 2 I. & N. Dec. 819, 828 (B.I.A. 1947); see also In re P–,

2 I. & N. Dec. 887, 887 (B.I.A. 1947); In re H–, 2 I. & N. Dec. 864, 865

(B.I.A. 1947); In re T–, 2 I. & N. Dec. 22, 42 (Op. Att’y Gen. 1944).

3

In re Diaz-Lizarraga, 26 I. & N. Dec. 847, 849 (B.I.A. 2016).

8 GARCIA-MARTINEZ V. SESSIONS

those decisions are overruled.” Id. at 855. Simply put, the

BIA changed the law.

The government, instead, argues that under the new rule

Garcia’s Oregon crimes are CIMTs because the new rule

should be applied retroactively to this case. If the new rule

does not apply retroactively, the BIA’s decision in this case

was in error.4

We recognize that the BIA can change its rules

retroactively through adjudication,5 but that authority is not

unconstrained. Rather, we must balance the reliance interests

of those to whom the new rule will be applied against the

mischief, if any, that would be caused if the rule is not so

applied. In doing so, we balance a number of “non-

exhaustive” factors, that is:

(1) whether the particular case is one of first

impression,

(2) whether the new rule represents an abrupt

departure from well established practice or

merely attempts to fill a void in an unsettled

area of law,

4

In fact, in this case a one-judge panel of the BIA did apply what

amounts to the new rule. That judge ultimately authored Diaz-Lizarraga,

but here he jumped the gun a bit.

5

See SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S. Ct. 1575,

1580–81, 91 L. Ed. 1995 (1947).

GARCIA-MARTINEZ V. SESSIONS 9

(3) the extent to which the party against whom

the new rule is applied relied on the former

rule,

(4) the degree of the burden which a

retroactive order imposes on a party, and

(5) the statutory interest in applying a new

rule despite the reliance of a party on the old

standard.

Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir.

2007). When we do so, that balance weighs heavily in

Garcia’s favor.

First, to the extent that the consideration is relevant in the

immigration context,6 this surely was not a case of first

impression.7 Seventy years of application of the old rule tells

us that. See Diaz-Lizarraga, 26 I. & N. Dec. at 849.

Second, on its face, the decision to abandon the literally-

permanent deprivation test was a rather abrupt change in the

law, to say the least. While there may have been some slight

deviation from time to time when the BIA indulged in

presumptions about intent in considering the law of a

6

See Carrillo de Palacios v. Holder, 708 F.3d 1066, 1072 (9th Cir.

2013); Garfias-Rodriguez v. Holder, 702 F.3d 504, 521–23 (9th Cir. 2012)

(en banc).

7

See Miguel-Miguel, 500 F.3d at 951.

10 GARCIA-MARTINEZ V. SESSIONS

particular state,8 that does not square well with Oregon law

which declares itself to be nondivisible in the theft area. See

Or. Rev. Stat. § 164.025; see also Almanza-Arenas, 815 F.3d

at 475. More than that, the BIA did not overturn the

requirement that a taking must be literally permanent until

Diaz-Lizarraga itself. The law was not truly unsettled. See

Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322, 1333

(9th Cir. 1982).

Third, if there were some arcane nuances lurking in some

of the BIA’s authorities, we do not doubt than an alien in

Garcia’s position would rely on the BIA’s continual

affirmation of the rule of literal deprivation which had existed

for decades. Indeed we will presume9 that he was aware of

the then existing rule when he pled guilty to the theft crimes

in Oregon.

Fourth, there can be little doubt that the change in the

rule—the new rule—will impose a new and severe burden10

upon Garcia, who will be removed from this country and

from the proximity of his family after living in this country

for over thirty years.

Fifth, we do not vilipend the BIA’s interest in treating all

aliens uniformly or look upon its interest in removing

8

See In re Jurado-Delgado, 24 I. & N. Dec. 29, 33–34 (B.I.A. 2006)

(law of Pennsylvania); cf. In re Grazley, 14 I. & N. Dec. 330, 333 (B.I.A.

1973) (law of Canada).

9

See Miguel-Miguel, 500 F.3d at 952; see also INS v. St. Cyr,

533 U.S. 289, 322–23, 121 S. Ct. 2271, 2291, 150 L. Ed. 2d 347 (2001).

10

See Montgomery Ward, 691 F.2d at 1334; see also Garfias-

Rodriguez, 702 F.3d at 523.

GARCIA-MARTINEZ V. SESSIONS 11

criminals from our midst with insouciance. However, we do

not think those have a great deal of weight in a case like this

one where the BIA lived with the preexisting rule for seven

decades and, in fact, until just a couple of years ago would

have treated Garcia as a person who had not committed

CIMTs.

Thus, on balance, the above factors and basic fairness

indicate that the changed rule should not be applied in this

situation. Rather, for this case, the law should remain as it

has been for many decades. In short, Garcia’s thefts were not

CIMTs, and his removal order must be set aside. Were we at

all doubtful about our conclusion, we would take comfort

from and be made more confident by a recent decision of the

Second Circuit Court of Appeals which, after weighing the

same factors, determined that the BIA’s new CIMT rule did

not apply retroactively. See Obeya v. Sessions, __ F.3d __,

__, No. 16-3922-ag, 2018 WL 1189417, at *2–5 (2d Cir. Mar.

8, 2018); see also Lucio-Rayos v. Sessions, 875 F.3d 573, 578

(10th Cir. 2017) (stating that the new rule “is presumed to

apply prospectively only”).

Therefore, we will grant the petition and remand.11

11

Because the new definition of CIMT does not apply to Garcia, we

need not, and do not, decide the constitutional questions raised by the

parties. See City of Los Angeles v. County of Kern, 581 F.3d 841, 846 (9th

Cir. 2009). That is, we do not decide whether the whole CIMT provision

must be stricken because it is void for vagueness. See Johnson v. United

States, __ U.S. __, __, 135 S. Ct. 2551, 2560, 192 L. Ed. 2d 569 (2015).

Nor do we decide the claim that Congress violated the separation of

powers principle when it conferred on the Attorney General the authority

to flesh out the meaning of CIMT. See Mistretta v. United States,

488 U.S. 361, 371–72, 109 S. Ct. 647, 654–55, 102 L. Ed. 2d 714 (1989).

12 GARCIA-MARTINEZ V. SESSIONS

CONCLUSION

Perhaps the BIA slumbered for many decades while other

authorities were wisely updating the law so that theft offenses

would net individuals other than those who intended to

literally permanently deprive others of their property,

although some of the BIA’s umbrageous statements along the

way showed that it stirred while it slept. In any event, the

BIA has changed or updated or revised its rule for the future.

Nevertheless, that rule should not be applied to Garcia, who

pled and was convicted while the old rule was extant.

Petition GRANTED, and matter REMANDED to the BIA

for proceedings consistent with this opinion.