Manuel Olivas-Motta v. Matthew Whitaker

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL JESUS OLIVAS-MOTTA, No. 14-70543

AKA Manuel Jesus Olivas-Notta,

Petitioner, Agency No.

A021-179-705

v.

MATTHEW G. WHITAKER, Acting OPINION

Attorney General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted September 10, 2018

San Francisco, California

Filed December 19, 2018

Before: J. Clifford Wallace, Johnnie B. Rawlinson,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Wallace;

Dissent by Judge Watford

2 OLIVAS-MOTTA V. WHITAKER

SUMMARY *

Immigration

The panel denied Manuel Jesus Olivas-Motta’s petition

for review of a decision of the Board of Immigration Appeals

that found him removable for having committed two crimes

involving moral turpitude.

Olivas-Motta, a lawful permanent resident, was placed

in removal proceedings based on his convictions for felony

endangerment under Arizona Revised Statutes § 13-1201

and facilitation to commit unlawful possession of marijuana

for sale. The immigration judge concluded (and the parties

did not dispute before this court) that the facilitation offense

was a crime involving moral turpitude. The immigration

judge and Board determined that felony endangerment was

neither categorically a crime involving moral turpitude nor a

crime involving moral turpitude under the modified

categorical approach, but examined evidence beyond the

record of conviction and found the offense involved moral

turpitude.

While Olivas-Motta’s petition for review was pending

before this court, the Board published In re Leal, 26 I. & N.

Dec. 20 (B.I.A. 2012) (Leal I), which held that felony

endangerment under Arizona Revised Statutes § 13-1201

was categorically a crime involving moral turpitude, and this

court upheld that determination in Leal v. Holder, 771 F.3d

1140 (9th Cir. 2014) (Leal II). Because the Board had not

*

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

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

OLIVAS-MOTTA V. WHITAKER 3

decided Olivas-Motta’s appeal on the ground that his offense

was categorically a crime involving moral turpitude, this

court did not consider Leal I’s relevance to Olivas-Motta’s

petition, but granted the petition and remanded because an

immigration judge and the Board are confined to the record

of conviction in this context. On remand, the Board

dismissed Olivas-Motta’s appeal, applying Leal I to

conclude that felony endangerment was categorically a

CIMT.

The panel rejected Olivas-Motta’s argument that Leal II

was wrongly decided, explaining that the panel has no power

to overrule circuit precedent.

The panel also rejected Olivas-Motta’s argument that the

Board’s application of Leal I was impermissibly retroactive.

Concluding that a change in law must have occurred before

this court’s retroactivity analysis from Montgomery Ward &

Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), is

implicated, the panel held that Montgomery Ward is only

applicable when an agency consciously overrules or

otherwise alters its own rule or regulation, or expressly

considers and openly departs from a circuit court decision.

Applying this standard to Olivas-Motta’s case, the panel

concluded that there was no change in law raising

retroactivity concerns: before Olivas-Motta pleaded guilty,

the Board had never determined in a precedential opinion

whether felony endangerment under Arizona Revised

Statutes § 13-1201 was a crime involving moral turpitude

and, therefore, the application of the statute was simply

unclear until Leal I.

Olivas-Motta also contended that the Attorney General’s

decision in In re Silva-Trevino, 24 I. & N. 687 (A.G. 2008),

4 OLIVAS-MOTTA V. WHITAKER

abolished the requirement that a crime with a mens rea of

recklessness could not constitute a crime involving moral

turpitude unless the offense presented an aggravating factor.

The panel disagreed, explaining that the aggravating-factor

analysis from earlier cases is harmonious with the later

approach in Silva-Trevino, and concluding that, as to

Arizona felony endangerment, Silva-Trevino did not change

the law.

Next, the panel rejected Olivas-Motta’s argument that,

due to both claim and issue preclusion, the Board could not

revisit on remand whether his offense was categorically a

crime involving moral turpitude. Although Olivas-Motta

had not exhausted the issue of preclusion, the panel

concluded it had jurisdiction to consider the claim because

Olivas-Motta did not have an opportunity to argue it until the

Board issued its second decision. On the merits, the panel

held that there was no error because both forms of preclusion

require the existence of a separate action, but the Board on

remand was acting within the same, single proceeding. The

panel also concluded that the rule of mandate, which

prohibits an agency from deviating from a court’s remand

order, did not foreclose the Board’s consideration of whether

the statute was categorically a crime involving moral

turpitude because nothing in the remand restricted the Board

from considering that issue.

Finally, the panel rejected Olivas-Motta’s argument that

8 U.S.C. § 1227(a)(2)(A)(ii), under which Olivas-Motta was

found to be removable for having committed crimes

involving moral turpitude, is unconstitutionally vague,

explaining that the Supreme Court and this court have

repeatedly rejected that vagueness challenge and that this

panel lacked authority to reconsider this court’s prior

decisions.

OLIVAS-MOTTA V. WHITAKER 5

Dissenting, Judge Watford disagreed with the panel’s

conclusion that Leal I was not a change in law necessary to

trigger retroactivity analysis. Judge Watford wrote that,

under the Board’s standards for determining which

recklessness offenses were crimes involving moral turpitude

in effect at the time Olivas-Motta pleaded guilty, there was

at least a realistic chance that his endangerment offense

would not be classified as a crime involving moral turpitude.

However, after the Attorney General’s decision in Silva-

Trevino, it was nearly certain that his offense would be

classified as a crime involving moral turpitude, and the

Board’s decision in Leal I eliminated what little uncertainty

remained. According to Judge Watford, this was a change

in the governing standard that attached new legal

consequences to events completed before its enactment.

Applying the retroactivity test from Montgomery Ward,

Judge Watford concluded that the balance of factors weighs

in favor of Olivas-Motta. Judge Watford would grant the

petition for review and remand so that the agency could

conduct the analysis in the first instance.

COUNSEL

K. Lee Hartzler (argued), San Diego, California, for

Petitioner.

Sarah A. Byrd (argued) and Keith I. McManus, Senior

Litigation Counselors; Cindy S. Ferrier, Assistant Director;

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

6 OLIVAS-MOTTA V. WHITAKER

OPINION

WALLACE, Circuit Judge:

An immigration judge (IJ) ordered Manuel Jesus Olivas-

Motta’s removal because he had been convicted of two

crimes involving moral turpitude (CIMTs). The Board of

Immigration Appeals (Board) dismissed Olivas-Motta’s

appeal from the IJ’s order. Olivas-Motta now petitions for

review of the Board’s dismissal. We have jurisdiction under

8 U.S.C. § 1252, and we deny the petition.

I.

Olivas-Motta is a citizen of Mexico who was admitted to

the United States of America as a lawful permanent resident

on or about October 12, 1976. He has since been convicted

of two felonies. On August 11, 2003, he was convicted of

facilitation to commit unlawful possession of marijuana for

sale in violation of Arizona Revised Statutes §§ 13-1004, 13-

3405. On November 26, 2007, he was convicted of felony

endangerment under Arizona Revised Statutes § 13-1201.

On April 2, 2009, the Department of Homeland Security

initiated removal proceedings against Olivas-Motta under

8 U.S.C. § 1227(a)(2)(A)(ii) as an alien convicted of two

CIMTs. The IJ determined, and the parties no longer dispute,

that the facilitation offense was a CIMT. As to the

endangerment offense, the IJ determined that it was neither

categorically a CIMT nor a CIMT under the modified

categorical approach. However, the IJ examined evidence

beyond the record of conviction, including police reports,

and determined that the offense involved moral turpitude.

The IJ then sustained the charge of removal. The Board

relied on the same grounds to conclude that the

OLIVAS-MOTTA V. WHITAKER 7

endangerment offense was a CIMT and dismissed Olivas-

Motta’s appeal.

Olivas-Motta petitioned for review of the Board’s

decision. While the petition was pending, the Board

published an opinion holding that felony endangerment

under Arizona Revised Statutes § 13-1201 was categorically

a CIMT. In re Leal, 26 I. & N. Dec. 20, 27 (B.I.A. 2012)

(Leal I). We upheld that determination. Leal v. Holder,

771 F.3d 1140, 1148–49 (9th Cir. 2014) (Leal II). But we

declined to consider Leal I’s relevance to Olivas-Motta in

his first petition because the Board had not originally

decided his appeal on the ground that felony endangerment

was categorically a CIMT. Olivas-Motta v. Holder, 746 F.3d

907, 917 (9th Cir. 2013), as amended (April 1, 2014); see

also Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir. 2011)

(confining our review to grounds relied upon by the Board).

Instead, we granted the petition and remanded because “an

IJ and the [Board] are confined to the record of conviction in

determining whether an alien has been convicted of a

CIMT.” Olivas-Motta, 746 F.3d at 908. On remand, the

Board applied Leal I to conclude that felony endangerment

was categorically a CIMT and dismissed Olivas-Motta’s

appeal.

Olivas-Motta again petitions for review of the Board’s

dismissal. He argues that the Board’s application of Leal I

was impermissibly retroactive, that preclusion bars the

Board from reconsidering whether felony endangerment was

categorically a CIMT, and that the phrase CIMT is

unconstitutionally vague.

Olivas-Motta also argues that we are not bound by Leal

II because it was wrongly decided. But this panel has no

power to overrule circuit precedent. Miller v. Gammie,

335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that

8 OLIVAS-MOTTA V. WHITAKER

circuit precedent may be overturned only en banc, subject to

exceptions not applicable here).

II.

We review constitutional claims and questions of law de

novo. Latter-Singh v. Holder, 668 F.3d 1156, 1159 (9th Cir.

2012); see also 8 U.S.C. § 1252(a)(2)(C), (D). Whether a

new agency interpretation may be applied retroactively is a

question of law. See Garfias-Rodriguez v. Holder, 702 F.3d

504, 514–15 (9th Cir. 2012) (en banc). Whether preclusion

is available is also a question of law. Oyeniran v. Holder,

672 F.3d 800, 806 (9th Cir. 2012), as amended (May 3,

2012).

III.

When an agency decides to create a new rule through

adjudicatory action, that new rule may apply retroactively to

regulated entities. SEC v. Chenery Corp., 332 U.S. 194, 203

(1947). “[R]etroactivity must be balanced against the

mischief of producing a result which is contrary to a

statutory design or to legal and equitable principles.” Id. “If

that mischief is greater than the ill effect of the retroactive

application of a new standard, it is not the type of

retroactivity which is condemned by law.” Id.

We have applied this rule in the immigration context to

determine whether Board decisions may apply retroactively.

See, e.g., Garfias-Rodriguez, 702 F.3d at 515–23; Miguel-

Miguel v. Gonzales, 500 F.3d 941, 950–53 (9th Cir. 2007).

In such cases, we have relied on the five-factor test set forth

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

1333 (9th Cir. 1982). Olivas-Motta argues that, in this case,

the Montgomery Ward factors strongly counsel against

retroactively applying Leal I to his case, and that the Board

OLIVAS-MOTTA V. WHITAKER 9

accordingly erred in concluding that Arizona felony

endangerment is categorically a CIMT.

A.

As a threshold matter, we must address whether

retroactivity is implicated by Leal I. The government argues

that a change in law is a prerequisite to Montgomery Ward

balancing, and that we should not conduct a retroactivity

analysis because no change in law occurred. Olivas-Motta

argues that the Montgomery Ward factors themselves

account for whether a change in law has occurred, and that

Montgomery Ward balancing is therefore appropriate

because Leal I was decided after his guilty plea.

We conclude that a change in law must have occurred

before Montgomery Ward is implicated. The requirement

that the law have changed in some way is generally a settled

principle of retroactivity analysis. See James B. Beam

Distilling Co. v. Georgia, 501 U.S. 529, 534 (1991) (“It is

only when the law changes in some respect that an assertion

of nonretroactivity may be entertained”); Morales-Izquierdo

v. Dep’t of Homeland Sec., 600 F.3d 1076, 1090 (9th Cir.

2010), overruled in part on other grounds by Garfias-

Rodriguez, 702 F.3d at 516 (“Montgomery Ward and its

progeny deal with the problems of retroactivity created when

an agency, acting in an adjudicative capacity, so alters an

existing agency-promulgated rule that it deprives a regulated

party of the advance notice to conform its conduct to the

rule”). It would be incongruous to apply a different rule here

because the principles animating a statute’s retroactivity —

“fair notice, reasonable reliance, and settled expectations”

— are equally animating in Olivas-Motta’s immigration

proceedings. See Vartelas v. Holder, 566 U.S. 257, 273

(2012) (quoting Landgraf v. USI Film Prod., 511 U.S. 244,

270 (1994)). Moreover, were we to adopt the rule that

10 OLIVAS-MOTTA V. WHITAKER

Montgomery Ward balancing is required regardless of

whether a change in law has occurred, the mere existence of

a new published decision on an issue would always trigger

retroactivity analysis. This too is contrary to settled law on

this issue. See Manhattan Gen. Equip. Co. v. Comm’r of

Internal Revenue, 297 U.S. 129, 135 (1936) (holding that a

tax regulation elaborating on a standard governed by statute

“is no more retroactive in its operation than is a judicial

determination construing and applying a statute to a case in

hand”). We therefore hold that Montgomery Ward

retroactivity analysis is only applicable when “an agency

consciously overrules or otherwise alters its own rule or

regulation,” or “expressly considers and openly departs from

a circuit court decision.” 1 Garfias-Rodriguez, 702 F.3d at

518–19.

Olivas-Motta’s primary argument against this

conclusion is the language of the Montgomery Ward factors.

It is true that the second Montgomery Ward factor is

“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.” Montgomery Ward, 691 F.2d at

1333 (emphasis added) (quoting Retail, Wholesale and

Dep’t Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir.

1972)). This language suggests that a change in law can

1

Judge Watford disagrees with our analysis and would conclude that

a change in law occurs when the Board’s decision was not “clearly

foreshadowed.” Diss. at 22. It is true that the Supreme Court has stated

that a new principle of law can be established by “deciding an issue

whose resolution was not clearly foreshadowed.” Chevron Oil Co. v.

Huson, 404 U.S. 97, 106 (1991). But “agency decisions are not

analogous to court decisions.” Garfias-Rodriguez, 702 F.3d at 520.

Chevron Oil, which dealt with court decisions, is not apposite when an

agency makes an adjudicatory decision that clarifies the scope of a

statute it is charged with executing.

OLIVAS-MOTTA V. WHITAKER 11

occur when the rule was previously unclear, and an

adjudicatory decision brings clarity to the issue. But we must

consider the Montgomery Ward factors in light of the general

rules of retroactivity, which require a change of law. In

addition, the other Montgomery Ward factors themselves

contemplate a change from a “former rule” or “old

standard.” See Montgomery Ward, 691 F.2d at 1333 (quoting

Retail, 466 F.2d at 390). We therefore distinguish between

cases where a rule, such as 8 U.S.C. § 1227(a)(2)(A)(ii),

already exists, and an administrative decision simply

clarifies the rule’s application, and cases where the decision

itself would “take away or impair vested rights acquired

under existing laws, or create a new obligation, impose a

new duty, or attach a new disability, in respect to

transactions or considerations already past.” Vartelas, 566

U.S. at 266 (alterations omitted) (quoting Soc’y for

Propagation of Gospel v. Wheeler, 22 F. Cas. 756, 767 (No.

13,156) (CCNH 1814)). In the latter cases, the

administrative decision has altered the legal consequences

flowing from events and “considerations already past,” and

thus changed the law. See id. (quoting Soc’y for Propagation

of Gospel, 22 F. Cas. at 767). But in the former, where the

adjudicatory decision does not trigger a new obligation,

impair a previously vested right, or attach new harm, no new

legal consequences flow from the decision, and retroactivity

is not implicated. The second Montgomery Ward factor is

therefore better understood as evaluating the character of a

change in law, once such a change has occurred, rather than

evaluating whether the change occurred in the first instance.

Olivas-Motta points to language in Garfias-Rodriguez

suggesting that a change in law is not a prerequisite to

Montgomery Ward balancing. See Garfias-Rodriguez,

702 F.3d at 516 (“Chief Judge Kozinski . . . applies

retroactivity principles to conclude that retroactivity analysis

12 OLIVAS-MOTTA V. WHITAKER

does not apply, effectively resolving the retroactivity

question against Garfias”). We do not think Garfias-

Rodriguez stands for the proposition Olivas-Motta believes

it does. There was no dispute in that case that the law had

changed; rather, the issue was how we should treat the

unquestionable change of law of this circuit when it was

prompted by a decision of the Board. See id. at 515–20.

Garfias-Rodriguez did not hold that Montgomery Ward

balancing is required when no change in law has taken place.

B

Applying this standard to this case, there was no change

in law. Before Olivas-Motta’s 2007 guilty plea, the Board

had never determined in a precedential opinion whether

felony endangerment in Arizona was a CIMT. The Board

had only issued unpublished decisions on the issue. See, e.g,

In Re Carlos Mario Almeraz-Hernandez, 2006 WL

3203649, at *2 (B.I.A. Sept. 6, 2006) (holding § 13-1201 is

not categorically a CIMT). Unpublished decisions are not

precedential and “do not bind future parties.” Marmolejo-

Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009).

Olivas-Motta therefore cannot argue that Leal I “attach[ed]

a new disability” to his guilty plea that did not exist at the

time he entered it. See Vartelas, 566 U.S. at 266 (quoting

Soc’y for Propagation, 22 F. Cas. at 767). Rather, 8 U.S.C.

§ 1227(a)(2)(A)(ii) had already created the legal

consequences of his plea, and it was merely unclear whether

it would apply. Leal I’s settling of that ambiguity did not

change the law any more than “a judicial determination

construing and applying a statute to a case in hand” would

have. See Manhattan Gen. Equip., 297 U.S. at 135.

Olivas-Motta counters that, notwithstanding the lack of

a precedential opinion on Arizona felony endangerment,

Leal I still constituted a change in law because of broader

OLIVAS-MOTTA V. WHITAKER 13

changes in the law of CIMTs. According to Olivas-Motta,

the law before 2008 was that a crime with a mens rea of

recklessness could not constitute a CIMT unless the offense

presented an “aggravating factor,” thus preventing Arizona

endangerment from qualifying. But after the Attorney

General’s decision in In re Silva-Trevino, 24 I. & N. 687

(A.G. 2008), argues Olivas-Motta, the aggravating-factor

requirement was abolished, thus leading to the decision in

Leal I.

We are not persuaded that Silva-Trevino created the

change in law identified by Olivas-Motta. As we explained

in Leal II, the aggravating-factor requirement “[wa]s not due

to the reckless mens rea involved, but rather because of the

underlying conduct; both this court and the Board have

repeatedly stated that simple assault is, in general, not a

CIMT.” 771 F.3d at 1148. Thus, in Olivas-Motta’s cited

cases, the aggravating-factor analysis is harmonious with the

Attorney General’s later approach in Silva-Trevino.

Compare In re Fualaau, 21 I. & N. Dec. 475, 478 (B.I.A.

1996) (“In order for an assault of the nature at issue in this

case to be deemed a crime involving moral turpitude, the

element of a reckless state of mind must be coupled with an

offense involving the infliction of serious bodily injury”

(emphasis added)), with Silva-Trevino, 24 I. & N. Dec. at

689 n.1 (“a crime must involve both reprehensible conduct

and some degree of scienter, whether specific intent,

deliberateness, willfulness, or recklessness” (emphasis

added)). The earlier Board cases and Silva-Trevino did not

apply the aggravating-factor requirement to all recklessness

crimes, and Silva-Trevino did not purport to overrule

decisions holding that simple assault is not a CIMT. See Leal

II, 771 F.3d at 1148 (stating after Silva-Trevino: “It thus

follows that, in order for an assault to be considered a CIMT,

there must be some additional factor involved in the specific

14 OLIVAS-MOTTA V. WHITAKER

offense to distinguish it from generic simple assault”). As to

Arizona felony endangerment then, Silva-Trevino did not

change the law.

Olivas-Motta’s argument to the contrary relies on

unpublished Board decisions on this matter. Olivas-Motta is

correct that unpublished Board decisions predating Silva-

Trevino relied on Fualaau to conclude that Arizona

endangerment was not a CIMT. See, e.g., Almeraz-

Hernandez, 2006 WL 3203649, at *2. Olivas-Motta is also

correct that Leal I cited Silva-Trevino as the controlling

framework before concluding that Arizona felony

endangerment was categorically a CIMT. 26 I. & N. Dec. at

21, 27. But once more, unpublished decisions “do not bind

future parties.” Marmolejo-Campos, 558 F.3d at 909.

Olivas-Motta’s attorney may have made a calculation that

Arizona felony endangerment would not be considered a

CIMT based on unpublished decisions, but Fualaau did not

foreclose the conclusion that it was a CIMT before Silva-

Trevino, nor did Silva-Trevino require the Board to conclude

that it was a CIMT afterwards. The application of the statute

was simply unclear until Leal I, at which point the published

Board opinion resolved the issue. Put differently, when

Olivas-Motta pleaded guilty in 2007, it was possible that his

conviction would not be adjudicated a CIMT, but no law

guaranteed that. Leal I’s conclusive resolution of this

uncertainty did not create a new legal harm to Olivas-Motta

that did not already exist.

Because there was no change in the law raising

retroactivity concerns, the Board did not err by applying Leal

I to conclude that Arizona endangerment is a CIMT.

OLIVAS-MOTTA V. WHITAKER 15

IV.

Preclusion prevents parties “from contesting matters that

they have had a full and fair opportunity to litigate,” thus

protecting “against ‘the expense and vexation attending

multiple lawsuits, conserv[ing] judicial resources, and

foster[ing] reliance on judicial action by minimizing the

possibility of inconsistent decisions.’” Taylor v. Sturgell,

553 U.S. 880, 892 (2008) (quoting Montana v. United States,

440 U.S. 147, 153–54 (1979)). “Under the doctrine of claim

preclusion, a final judgment forecloses ‘successive litigation

of the very same claim, whether or not relitigation of the

claim raises the same issues as the earlier suit.’” Id. (quoting

New Hampshire v. Maine, 532 U.S. 742, 748 (2001)). Under

the doctrine of issue preclusion, parties may not relitigate

“‘an issue of fact or law actually litigated and resolved in a

valid court determination essential to the prior judgment,’

even if the issue recurs in the context of a different claim.”

Id. (quoting New Hampshire, 532 U.S. at 748–49). Olivas-

Motta contends that, due to both types of preclusion, the

Board could not revisit on remand whether felony

endangerment was categorically a CIMT, after determining

initially that it was not.

A.

Before we can evaluate Olivas-Motta’s argument, we

must address whether we have jurisdiction to consider it. The

government argues that Olivas-Motta failed to exhaust his

administrative remedies because he did not argue preclusion

before the Board. Olivas-Motta responds that he could not

raise preclusion because it was not implicated until the

Board applied Leal I to his appeal.

We conclude that we have jurisdiction. 8 U.S.C.

§ 1252(d)(1) provides that a court may review a final order

16 OLIVAS-MOTTA V. WHITAKER

of removal only if “the alien has exhausted all administrative

remedies available to the alien as of right.” We have held

that “1252(d)(1) mandates exhaustion and therefore

generally bars us, for lack of subject-matter jurisdiction,

from reaching the merits of a legal claim not presented in

administrative proceedings below.” Barron v. Ashcroft,

358 F.3d 674, 678 (9th Cir. 2004). But section 1252(d)(1) by

its terms limits the petitioner’s duty to “remedies available

to the alien as of right.” We have thus held that we retain

jurisdiction over petitions where the challenged agency

action was committed by the Board after briefing was

completed, because the only remaining administrative

remedies for such an action were not available “as of right.”

Alcaraz v. INS, 384 F.3d 1150, 1159–60 (9th Cir. 2004).

In this case, after we granted Olivas-Motta’s first petition

and remanded to the Board, Olivas-Motta was never

provided an opportunity to argue preclusion until the Board

issued its second decision. At that point, his only remedies

were discretionary, and there was no higher administrative

authority to correct the supposed error. See id. A petition for

review to this court was therefore proper, and section

1252(d)(1) does not divest us of jurisdiction.

B.

On the merits of Olivas-Motta’s preclusion argument,

we hold there was no error. Claim preclusion requires a final

judgment on the merits in a separate action. Valencia-

Alvarez v. Gonzales, 469 F.3d 1319, 1323–24 (9th Cir.

2006). By granting Olivas-Motta’s petition for review in

2013, his original action continued, and no separate action

commenced. See id. at 1324. Similarly, issue preclusion only

applies when issues are “litigated and decided in the prior

proceedings.” Oyeniran, 672 F.3d at 806 (emphasis added).

Multiple proceedings are a prerequisite before issue

OLIVAS-MOTTA V. WHITAKER 17

preclusion can apply. See id. Because the Board on remand

was acting within the same proceedings as in Olivas-Motta’s

original appeal, preclusion does not apply.

Olivas-Motta counters this argument by citing an

unpublished decision of this court relating to the rule of

mandate and making preclusion arguments by analogy. This

was also the argument that Olivas-Motta made to the Board

on remand. We consider this argument to be a rule of

mandate argument, rather than one of claim preclusion or

issue preclusion. Olivas-Motta has not argued that the Board

could not reconsider this issue because of law of the case.

The rule of mandate is related to, but distinct from, claim

preclusion and issue preclusion. Under the rule of mandate,

an administrative agency may not deviate from a supervising

court’s remand order, and the reviewing court may review

the agency’s decision on remand “to assure that its prior

mandate is effectuated.” Sullivan v. Hudson, 490 U.S. 877,

886 (1989); see also Mendez-Gutierrez v. Gonzales,

444 F.3d 1168, 1172–73 (9th Cir. 2006) (holding that the

rule of mandate applies to decisions of the Board on remand

from this court). Thus, as with claim preclusion and issue

preclusion, the rule of mandate can prevent parties from

relitigating issues already decided. But the scope of the rule

is limited to that which is before the court “and disposed of

by its decree.” United States v. Thrasher, 483 F.3d 977, 981

(9th Cir. 2007) (quoting In re Sanford Fork & Tool Co.,

160 U.S. 247, 255 (1895)). An administrative agency may

therefore consider on remand “any issue not expressly or

impliedly disposed of on appeal.” Stacy v. Colvin, 825 F.3d

563, 568 (9th Cir. 2016) (quoting Odima v. Westin Tucscon

Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995)).

Our mandate in Olivas-Motta’s first petition did not

conclude that felony endangerment was not a CIMT, or that

18 OLIVAS-MOTTA V. WHITAKER

Leal I was wrongly decided. 746 F.3d at 916–17. Instead, we

“h[e]ld only that that we [could] not deny Olivas-Motta’s

petition based on a conclusion reached by the [Board] in a

separate case decided two years after it decided the appeal

now before us.” Id. at 917. Nothing in our remand restricted

the Board from considering the import of Leal I on Olivas-

Motta’s appeal. Accordingly, the rule of mandate did not

foreclose the Board’s reconsideration of the issue.

V.

The void-for-vagueness doctrine stems from the Fifth

Amendment’s guarantee of due process. Johnson v. United

States, 135 S. Ct. 2551, 2556 (2015). “[T]he Government

violates this guarantee by taking away someone’s life,

liberty, or property under a criminal law so vague that it fails

to give ordinary people fair notice of the conduct it punishes,

or so standardless that it invites arbitrary enforcement.” Id.

Because “deportation is ‘a particularly severe penalty,’

which may be of greater concern to a convicted alien than

‘any potential jail sentence,’” a provision of immigration law

making an alien deportable is subject to the void-for-

vagueness doctrine. Sessions v. Dimaya, 138 S. Ct. 1204,

1213 (2018) (quoting Jae Lee v. United States, 137 S. Ct.

1958, 1968 (2017)).

Olivas-Motta argues that, even if applying Leal I to his

appeal was not impermissibly retroactive or precluded, we

should nonetheless grant the petition because 8 U.S.C.

§ 1227(a)(2)(A)(ii) itself is unconstitutionally vague. While

he recognizes that both the Supreme Court and this court

have repeatedly rejected that argument, see Jordan v. De

George, 341 U.S. 223, 232 (1951); Martinez-De Ryan v.

Sessions, 895 F.3d 1191, 1194 (9th Cir. 2018), Olivas-Motta

contends that the Board’s interpretation of the statute has

OLIVAS-MOTTA V. WHITAKER 19

expanded the meaning of “moral turpitude” to the point that

there is no meaningful standard guiding aliens’ conduct.

We are not persuaded that this argument is

distinguishable from those rejected in past cases. As we

explained in Leal II, a crime is morally turpitudinous if it

involves a conscious decision and a resulting harm, where

“more serious resulting harm is required” “as the level of

conscious behavior decreases, i.e., from intentional to

reckless conduct.” 771 F.3d at 1146 (quoting Ceron v.

Holder, 747 F.3d 773, 783 (9th Cir. 2014) (en banc)). That

is the standard the Board applied to evaluate Arizona felony

endangerment, id. at 1147, and that standard is sufficiently

meaningful to provide fair notice under our precedent.

Martinez-De Ryan, 895 F.3d at 1193–94. To the extent

Olivas-Motta asks us to reconsider those decisions, that is

beyond this panel’s authority. Miller, 335 F.3d at 900.

VI.

The Board did not commit any of the raised legal errors

by concluding that Olivas-Motta’s conviction for reckless

endangerment was a crime involving moral turpitude. We

therefore deny the petition.

PETITION DENIED.

20 OLIVAS-MOTTA V. WHITAKER

WATFORD, Circuit Judge, dissenting:

When a non-citizen is charged with a crime and deciding

whether to plead guilty, the immigration consequences of a

conviction are often a major consideration. For some

defendants, preserving the chance to remain in the United

States is more important than the length of any prison

sentence that might be imposed. Padilla v. Kentucky,

559 U.S. 356, 368 (2010). With that in mind, competent

defense counsel “may be able to plea bargain creatively with

the prosecutor in order to craft a conviction and sentence that

reduce the likelihood of deportation, as by avoiding a

conviction for an offense that automatically triggers the

removal consequence.” Id. at 373. Such plea bargains are

mutually beneficial for the prosecution: A defendant who

might otherwise have proceeded to trial may be persuaded to

forgo that right in exchange for a deal that allows him to

plead guilty to an offense that reduces the risk of removal.

Id.

An assessment of the immigration consequences

attending a guilty plea must, of course, be based on the law

as it exists at the time of the plea. If the law on that subject

changes after a defendant pleads guilty, he usually cannot go

back and undo his conviction, even if the conviction now

carries far more serious immigration consequences than

before. For that reason, when there is an intervening change

in the law, we are required to assess whether the new rule

may be applied retroactively in subsequent removal

proceedings.

The majority refuses to engage in that analysis because

it concludes that no “new rule” was adopted after Manuel

Olivas-Motta pleaded guilty. I respectfully disagree.

OLIVAS-MOTTA V. WHITAKER 21

The sole issue in Olivas-Motta’s removal proceedings is

whether reckless endangerment under Arizona Revised

Statutes § 13-1201 constitutes a crime involving moral

turpitude. When Olivas-Motta pleaded guilty to that offense

in 2007, the Board of Immigration Appeals (BIA) had not

decided in a precedential opinion whether reckless

endangerment should be classified as a crime involving

moral turpitude. But in 2012, long after Olivas-Motta

pleaded guilty, the BIA held for the first time that reckless

endangerment under § 13-1201 is a crime involving moral

turpitude. Matter of Leal, 26 I. & N. Dec. 20, 27 (BIA

2012), aff’d sub nom. Leal v. Holder, 771 F.3d 1140 (9th Cir.

2014).

The holding in Matter of Leal represents a “new rule”

under any definition of that term. The Supreme Court has

said that a decision can establish a new rule “either by

overruling clear past precedent on which litigants may have

relied, or by deciding an issue of first impression whose

resolution was not clearly foreshadowed.” Chevron Oil Co.

v. Huson, 404 U.S. 97, 106 (1971) (citations omitted). The

BIA did not overrule past precedent in Matter of Leal, but it

did resolve an issue of first impression—whether reckless

endangerment qualifies as a crime involving moral turpitude.

The BIA’s resolution of that issue was not clearly

foreshadowed by precedent existing at the time Olivas-

Motta pleaded guilty. In fact, as discussed below, the BIA’s

precedent in 2007 suggested that reckless endangerment

under § 13-1201 would not be classified as a crime involving

moral turpitude. Thus, Matter of Leal plainly constitutes the

“change in law” that the majority identifies as necessary to

trigger retroactivity analysis. Maj. op. at 9.

The majority suggests that our case is analogous to one

in which a statutory provision is on the books when a

22 OLIVAS-MOTTA V. WHITAKER

defendant pleads guilty, and a court later does nothing more

than construe and apply that statute in the case at hand. Maj.

op. at 12. In that scenario, the majority asserts, we would

not regard the judicial interpretation as a “new rule” subject

to retroactivity analysis.

The majority’s assertion would be correct if the court’s

decision were “dictate[d] by the plain language of the

statute.” Harper v. Virginia Department of Taxation,

509 U.S. 86, 111 (1993) (Kennedy, J., concurring in part and

concurring in the judgment) (internal quotation marks

omitted). But that is certainly not the case here. The

governing statutory standard is supplied by 8 U.S.C.

§ 1227(a)(2)(A)(ii), which renders a non-citizen removable

if he’s been convicted of two or more “crimes involving

moral turpitude.” The quoted phrase has no intelligible

meaning; it creates what Justice Jackson rightly labeled “an

undefined and undefinable standard.” Jordan v. De George,

341 U.S. 223, 235 (1951) (Jackson, J., dissenting). Neither

our court nor the BIA has been able to come up with “any

coherent criteria for determining which crimes fall within

that classification and which crimes do not.” Nunez v.

Holder, 594 F.3d 1124, 1130 (9th Cir. 2010). The BIA has

been able to give the statutory standard concrete meaning

mainly by declaring, through case-by-case adjudications,

which specific offenses are covered and which are not. See

Marmolejo-Campos v. Holder, 558 F.3d 903, 910–11 (9th

Cir. 2009) (en banc).

Against that backdrop, each BIA decision that designates

a new offense (or class of offenses) as a crime involving

moral turpitude potentially creates a “new rule” for

retroactivity purposes—at least where, as here, the decision

was not clearly foreshadowed by prior precedent. That does

not mean retroactive application of all such decisions is

OLIVAS-MOTTA V. WHITAKER 23

prohibited; it just means that the decisions must be analyzed

under the framework we’ve established for assessing

whether retroactive application is permissible.

This case is a prime example of one in which retroactive

application of a new rule is impermissible. Olivas-Motta

was originally charged in 2007 with attempted murder and

aggravated assault with a deadly weapon, offenses that

would clearly render him removable if he were convicted.

He had already been convicted of one crime involving moral

turpitude; he would be subject to removal if convicted of a

second, and the BIA had already classified attempted murder

and aggravated assault with a deadly weapon as crimes

involving moral turpitude. See Matter of Sanchez-Linn, 20 I.

& N. Dec. 362, 366 (BIA 1991); Matter of Medina, 15 I. &

N. Dec. 611, 614 (BIA 1976).

Minimizing the likelihood of removal was of paramount

concern to Olivas-Motta. He was born in Mexico, but his

parents brought him to the United States in 1976 when he

was only ten days old. He has lived his entire life in this

country as a lawful permanent resident. He is married to a

U.S. citizen, and both of his children are U.S. citizens. Most

of his family members are also either U.S. citizens or lawful

permanent residents. For him, being removed to Mexico

would truly be “the equivalent of banishment or exile.”

Padilla, 559 U.S. at 373 (quoting Delgadillo v. Carmichael,

332 U.S. 388, 390–91 (1947)).

Although Olivas-Motta believed himself innocent of the

charges he faced, he was no doubt “acutely aware” of the

severe immigration consequences a conviction would

trigger. INS v. St. Cyr, 533 U.S. 289, 322 (2001). He

therefore had his attorney explore the possibility of pleading

guilty to a lesser offense. Olivas-Motta’s defense counsel

consulted with an experienced immigration lawyer, who

24 OLIVAS-MOTTA V. WHITAKER

surveyed the law as it then stood. She advised that having

Olivas-Motta plead guilty to reckless endangerment under

§ 13-1201 would minimize the risk of deportation because

that offense in all likelihood would not be regarded as a

crime involving moral turpitude. Olivas-Motta relied on that

advice in deciding to plead guilty and forgo his right to a

trial.

The advice Olivas-Motta received was sound at the time.

The BIA had long held that crimes involving moral turpitude

require some form of corrupt or evil intent. See, e.g., Matter

of P—, 3 I. & N. Dec. 56, 59 (BIA 1947). The BIA retreated

from that position in 1976, when it held that certain offenses

committed with a mens rea of recklessness could qualify as

well. Medina, 15 I. & N. Dec. at 614. But the Board also

made clear that a crime involving reckless conduct is not per

se a crime involving moral turpitude. In re Fualaau, 21 I. &

N. Dec. 475, 478 (BIA 1996). Something more was

required, although exactly what that something more

consisted of remained open to debate. In predicting the

likely classification of reckless endangerment, the best

guidance came from a series of cases involving

manslaughter and assault offenses, which held that a crime

committed with a mens rea of recklessness had to include as

an element some sort of aggravating circumstance, such as

the infliction of death or serious bodily injury. See id.

(serious bodily injury); Matter of Wojtkow, 18 I. & N. Dec.

111, 113 (BIA 1981) (death); Medina, 15 I. & N. Dec. at 614

(use of a deadly weapon).

As of 2007, the BIA had not issued a precedential

decision involving a reckless endangerment offense.

Nonetheless, reckless endangerment under Arizona law did

not appear to qualify as a crime involving moral turpitude,

for although it requires a mens rea of recklessness, it does

OLIVAS-MOTTA V. WHITAKER 25

not require proof of any of the aggravating circumstances

found in past cases. The felony version of the offense, to

which Olivas-Motta pleaded guilty, simply requires

“recklessly endangering another person with a substantial

risk of imminent death.” Ariz. Rev. Stat. § 13-1201(A). To

be sure, there was ongoing debate about whether placing

someone in grave risk of death or serious bodily injury could

itself be deemed an aggravating circumstance, see Knapik v.

Ashcroft, 384 F.3d 84, 90 (3d Cir. 2004); In re Braimllari,

2006 WL 729794, at *1 (BIA Feb. 14, 2006), but the BIA

had rejected that view in two non-precedential decisions,

both of which expressly held that reckless endangerment

under § 13-1201 did not qualify as a crime involving moral

turpitude. In re Almeraz-Hernandez, 2006 WL 3203649, at

*2–3 (BIA Sept. 6, 2006); In re Valles-Moreno, 2006 WL

3922279, at *2–3 (BIA Dec. 27, 2006).

In 2008, however, the Attorney General replaced the

BIA’s former standard for determining which recklessness

offenses qualify as crimes involving moral turpitude with a

new standard. In Matter of Silva-Trevino, 24 I. & N. Dec.

687 (A.G. 2008), the Attorney General declared that, to

qualify as a crime involving moral turpitude, an offense need

involve only “reprehensible conduct and some degree of

scienter.” Id. at 689 n.1. The effect of this change was to

eliminate the aggravating-circumstance requirement for

offenses with a mens rea of recklessness. 1 Under the new

1

The government argues, and the majority appears to agree, that the

aggravating-circumstance requirement was limited to assault offenses,

and thus did not apply to offenses like reckless endangerment. Maj. op.

at 13–14. But none of the BIA’s cases in this area held that the

aggravating-circumstance requirement was limited to assault offenses

alone, and there is no logical reason why it would not extend to a

comparably serious offense such as reckless endangerment. Indeed, in

each of the pre-Silva-Trevino cases in which the BIA held that a reckless

26 OLIVAS-MOTTA V. WHITAKER

standard, it was now far more likely that reckless

endangerment under § 13-1201 would be classified as a

crime involving moral turpitude. After all, placing someone

in “substantial risk of imminent death” would certainly seem

to qualify as reprehensible conduct. And indeed, in 2012,

that is exactly what the BIA concluded in Matter of Leal,

where the agency held for the first time that reckless

endangerment under § 13-1201 constitutes a crime involving

moral turpitude. 26 I. & N. Dec. at 27.

The question thus becomes whether Matter of Leal may

be applied retroactively to Olivas-Motta’s case—in other

words, whether the immigration consequences of his

conviction should be assessed under the law as it stood in

2007, when he pleaded guilty, or under the law as it stood in

2014, when the BIA adjudicated his appeal. To answer that

question, we apply the test from Montgomery Ward & Co. v.

FTC, 691 F.2d 1322 (9th Cir. 1982), which requires us to

balance five factors: “(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, (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.” Id. at 1333 (internal

quotation marks omitted).

endangerment offense qualified as a crime involving moral turpitude, no

one disputed that the aggravating-circumstance requirement applied.

The BIA simply concluded in those cases, involving statutes from other

States, that the requirement was satisfied. See Knapik, 384 F.3d at 90;

Braimllari, 2006 WL 729794, at *1.

OLIVAS-MOTTA V. WHITAKER 27

The weight to be accorded the first, fourth, and fifth

factors has already been settled. We have held that the first

factor does not favor either party in the immigration context.

Garfias-Rodriguez v. Holder, 702 F.3d 504, 520–21 (9th Cir.

2012) (en banc). The fourth factor strongly favors Olivas-

Motta, as the burden imposed by retroactively applying the

law in effect in 2014 is severe: Under the rule adopted in

Matter of Leal, his conviction for reckless endangerment

would be regarded as a crime involving moral turpitude,

subjecting him to removal from the United States and

separation from his family. See id. at 523. The fifth factor

points in the government’s favor, since “non-retroactivity

impairs the uniformity of a statutory scheme, and the

importance of uniformity in immigration law is well

established.” Id.

The second and third factors, then, are dispositive, and

they tip the balance in Olivas-Motta’s favor. When he

pleaded guilty to reckless endangerment in 2007, the BIA

had an established standard for determining which

recklessness offenses constitute crimes involving moral

turpitude. The Attorney General’s subsequent decision in

Silva-Trevino represented an “abrupt departure” from that

standard, Montgomery Ward, 691 F.2d at 1333 (internal

quotation marks omitted), in the sense that it replaced the

aggravating-circumstance requirement with a new, more

expansive standard. That change in the governing standard

was outcome determinative with respect to certain offenses,

as we know from the way the BIA classified § 13-1201

before and after Silva-Trevino. Before the Attorney

General’s decision, the BIA had held (in non-precedential

decisions) that reckless endangerment under § 13-1201 does

not constitute a crime involving moral turpitude; afterward

the BIA definitively held exactly the opposite. Because

Olivas-Motta had no reason to anticipate elimination of the

28 OLIVAS-MOTTA V. WHITAKER

aggravating-circumstance requirement, his reliance on the

pre-Silva-Trevino standard when deciding to plead guilty

was eminently reasonable. Cf. Garfias-Rodriguez, 702 F.3d

at 521 (second and third factors weigh in favor of retroactive

application when the petitioner “could reasonably have

anticipated the change in the law such that the new

‘requirement would not be a complete surprise’”) (quoting

Montgomery Ward, 691 F.2d at 1333–34).

It’s true, as the government argues, that the status of

§ 13-1201 had not been settled definitively in Olivas-

Motta’s favor prior to 2008. So this is not a case in which it

is 100% clear that Olivas-Motta would have prevailed under

the pre-Silva-Trevino standard. But, contrary to the

majority’s apparent assumption, see Maj. op. at 14, that is

far from fatal under the second and third Montgomery Ward

factors.

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

2007), we ruled for the petitioner in circumstances quite

similar to those present here. When the petitioner in that

case pleaded guilty to selling a small amount of cocaine, a

relatively minor drug-trafficking offense like his would be

classified as a “particularly serious crime” on a case-by-case

basis using a multi-factor test. Id. at 945–46, 950. After he

pleaded guilty, the Attorney General created a new standard

that presumed all drug-trafficking offenses to be particularly

serious crimes, with the presumption rebuttable only in very

narrow circumstances. Id. at 946–47. We held that the

second and third factors favored the petitioner because at the

time he pleaded guilty, there was a “realistic chance” that the

BIA would find that his crime was not particularly serious,

whereas under the Attorney General’s new standard there

was “a near (if not total) certainty” that his crime would be

OLIVAS-MOTTA V. WHITAKER 29

classified as particularly serious, thereby resulting in his

removal. Id. at 952; see also St. Cyr, 533 U.S. at 321.

Olivas-Motta’s situation is no different. At the time he

pleaded guilty, there was at least a realistic chance that his

reckless endangerment offense would not be classified as a

crime involving moral turpitude; the BIA had already so held

in two non-precedential decisions. After the Attorney

General’s decision in Silva-Trevino, however, it was nearly

certain that his offense would be classified as a crime

involving moral turpitude, and the BIA’s decision in Matter

of Leal soon eliminated what little uncertainty remained on

that score. To the same extent as in Miguel-Miguel, the

change in the governing standard “attaches new legal

consequences to events completed before its enactment,”

Vartelas v. Holder, 566 U.S. 257, 273 (2012) (internal

quotation marks omitted), and therefore may not be applied

retroactively.

Under the Montgomery Ward test, the balance of factors

weighs in favor of Olivas-Motta. Three of the factors favor

him—one strongly so—while only one of the factors points

in the government’s favor. That means the status of his

conviction for reckless endangerment should be analyzed

under the law as it stood in 2007, applying the standard that

prevailed before the Attorney General’s decision in Silva-

Trevino. See id. at 261. I would grant Olivas-Motta’s

petition for review and remand so that the agency can

conduct that analysis in the first instance.