Felipe Betansos v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FELIPE CRUZ BETANSOS, No. 15-72347

Petitioner,

Agency No.

v. A077-310-010

WILLIAM P. BARR, Attorney General,

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 12, 2018

Pasadena, California

Filed July 5, 2019

Before: Carlos T. Bea and Mary H. Murguia, Circuit

Judges, and Stanley Allen Bastian, * District Judge.

Opinion by Judge Murguia;

Concurrence by Judge Murguia

*

The Honorable Stanley Allen Bastian, United States District Judge

for the Eastern District of Washington, sitting by designation.

2 BETANSOS V. BARR

SUMMARY **

Immigration

Denying Felipe Cruz Betansos’s petition for review of a

decision of the Board of Immigration Appeals, the panel

deferred to the BIA’s decision in Matter of Cortes Medina

that a conviction for indecent exposure under California

Penal Code § 314(1) is categorically a crime involving moral

turpitude (“CIMT”) and held that Cortes Medina applied

retroactively to Betansos’s case such that his § 314(1)

conviction was a CIMT that made him ineligible for

cancellation of removal.

In concluding that Betansos’s indecent exposure

conviction under § 314(1) was a CIMT, the BIA relied on its

published decision in Matter of Cortes Medina, 26 I. & N.

Dec. 79 (BIA 2013). However, the BIA’s decision in Cortes

Medina contradicted this court’s earlier decision, Nunez v.

Holder, 594 F.3d 1124 (9th Cir. 2010), in which the court

held that indecent exposure under § 314(1) was not

categorically a CIMT. In Nunez, the court determined that

the BIA’s unpublished decision did not merit deference and

adopted a definition of moral turpitude that required the

infliction of harm or the involvement of a protected class. In

Cortes Medina, the BIA disagreed with Nunez’s generic

definition as being too narrow, concluding that the defining

characteristic of a CIMT in the indecent exposure context is

whether the offense includes “lewd intent.”

**

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

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

BETANSOS V. BARR 3

The panel concluded that it must defer to Cortes Medina

under National Cable & Telecommunications Association v.

Brand X Internet Services, 545 U.S. 967 (2005). The panel

noted that, unlike in Nunez, the BIA in Cortes Medina

presented analysis explaining how it arrived at its generic

definition of moral turpitude and explained why violations

of § 314(1) are a categorical match to that generic definition.

Because Cortes Medina did not misrepresent the authorities

it relied on, it relied on published BIA authority, and its

analysis was reasoned and thorough, the panel concluded

that it could not say that the BIA’s decision was

unreasonable.

Applying the five-factor retroactivity framework from

Montgomery Ward &. Co., Inc. v. FTC, 691 F.2d 1322 (9th

Cir. 1982), the panel also concluded that Cortes Medina

applied retroactively to Betansos. The panel concluded that

the first factor was not in play in this case, and that the fourth

factor—the burden imposed by retroactive application—

clearly favored Betansos, but that the fifth factor—the

statutory interest in applying a new rule—leaned in the

government’s direction. Noting that the second factor—

whether the new rule represents an abrupt departure from

well established practice—arguably favored Betansos, the

panel concluded that overall the factors supported

retroactive application because factor three—reliance on the

new rule—weighed against Betansos. Specifically, the

panel concluded that Betansos did not show that he in fact

relied on Nunez prior to the BIA’s decision in Cortes

Medina.

Specially concurring, Judge Murguia, joined by Judge

Bastian, wrote separately to note a tension between the

realities of criminal prosecutions and the tools the court

applies in immigration cases involving the categorical

4 BETANSOS V. BARR

approach. Judge Murguia wrote that, because the vast

majority—and nearly all—of criminal cases are resolved

through plea bargains, a gap remains in the approaches for

demonstrating a “realistic probability” of prosecution for

conduct that falls outside the generic definition of a crime.

Accordingly, Judge Murguia noted that it would be worth

developing a mechanism for considering what conduct

prosecutors charge and results in defendants accepting pleas.

COUNSEL

Robert Francis Jacobs (argued), Robert F. Jacobs &

Associates, Santa Fe Springs, California, for Petitioner.

Erica Miles (argued), Trial Attorney; John W. Blakeley,

Assistant Director; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

BETANSOS V. BARR 5

OPINION

MURGUIA, Circuit Judge:

Felipe Cruz Betansos, a native and citizen of Mexico,

appeals the Board of Immigration Appeals’ (“BIA”)

dismissal of his application for cancellation of removal. In

dismissing his appeal, the BIA affirmed the Immigration

Judge’s (“IJ”) conclusion that Betansos’s conviction for

indecent exposure under California Penal Code § 314(1) is

categorically a crime involving moral turpitude (“CIMT”).

Betansos’s criminal record also includes a petty theft

conviction, which he does not dispute is a CIMT. Therefore,

if Betansos’s indecent exposure conviction is a CIMT,

Betansos is ineligible for cancellation of removal because

aliens convicted of two CIMTs are ineligible for cancellation

of removal. 8 U.S.C. § 1229b(b)(1)(C).

In affirming the IJ’s determination that Betansos’s

indecent exposure conviction is a CIMT, the BIA relied on

its published decision in Matter of Cortes Medina, 26 I. &

N. Dec. 79 (BIA 2013), which held that a conviction under

§ 314(1) is categorically a CIMT. Cortes Medina contradicts

our 2010 decision, Nunez v. Holder, 594 F.3d 1124 (9th Cir.

2010), in which we rejected the BIA’s determination that

§ 314(1) is categorically a CIMT because the BIA decision

we reviewed in Nunez rested entirely on an unproven

statement that § 314(1) requires sexual motivation. Nunez,

594 F.3d at 1133. In Nunez, we held that indecent exposure

under § 314(1) is not categorically a CIMT. Id. at 1138.

We must now decide whether to defer to the BIA’s more

recent determination in Cortes Medina that a violation of

§ 314(1) categorically constitutes a CIMT. If we defer to

Cortes Medina, we must also decide whether we will do so

retroactively. For the reasons explained below, we conclude

6 BETANSOS V. BARR

that we must defer to Cortes Medina pursuant to the

framework outlined in National Cable &

Telecommunications Association v. Brand X Internet

Services, 545 U.S. 967, 982 (2005). We also conclude that

Cortes Medina applies retroactively in Betansos’s case. We

therefore deny Betansos’s petition for review.

I.

Betansos entered the United States in 1989 and has

resided here since. He is unmarried, but he lives with his

longtime girlfriend with whom he has a 17-year-old daughter

who is a United States citizen.

Betansos has five criminal convictions in California.

Relevant here are his 1989 petty theft, Cal. Penal Code

§ 484(a), and 2002 indecent exposure, Cal. Penal Code

§ 314(1), convictions. 1

On April 22, 2010, the Department of Homeland

Security (“DHS”) served Betansos with a Notice to Appear,

which initiated his removal proceedings. At that time,

Betansos was in custody. On May 11, 2012, Betansos,

represented by counsel, admitted that he is not lawfully

present in the United States and is a citizen of Mexico and

conceded removability. On September 14, 2012, Betansos

and his attorney appeared before the IJ to file his application

for cancellation of removal. About a year later, in October

2013, the IJ held another hearing and denied Betansos’s

application for relief.

1

Betansos was also convicted in 1994 for driving with a blood

alcohol level of .08 or more, Cal. Veh. Code § 23152(b), and in 2003 and

2007, for domestic battery, Cal. Penal Code § 243(e)(1).

BETANSOS V. BARR 7

A.

Betansos requested cancellation of removal as relief

from deportation. To be eligible for cancellation of removal,

Betansos had to demonstrate, among other things, that he

was not convicted of certain enumerated offenses. 2 8 U.S.C.

§ 1229b(b)(1)(C).

In denying Betansos’s application for cancellation of

removal, the IJ concluded that because Betansos had been

convicted of two CIMTs—petty theft and indecent

exposure—he was statutorily ineligible for cancellation of

removal. 8 U.S.C. § 1229b(b)(1)(B), (C). The IJ relied on

Cortes Medina to conclude that indecent exposure

constitutes a CIMT, noting that Cortes Medina held that

indecent exposure under § 314(1) includes “the element of

lewd intent.” Cortes Medina was decided on January 8,

2013, after Betansos applied for cancellation of removal but

before the IJ held the October 2013 hearing. Because

Betansos sought no other form of relief, the IJ ordered

Betansos removed to Mexico. Betansos timely appealed the

IJ’s decision to the BIA.

B.

The BIA dismissed Betansos’s appeal on June 29, 2015.

In dismissing the appeal, the BIA agreed with the IJ that

Betansos was ineligible for cancellation of removal because

he was convicted of two CIMTs. The BIA noted that

2

Betansos also had to demonstrate that: (1) he had been

continuously physically present in the United States for not less than

10 years immediately before his application was filed, (2) he was a

“person of good moral character” during that time, and (3) his removal

would “result in exceptional and extremely unusual hardship” to his

United States citizen daughter. 8 U.S.C. § 1229b(b)(1)(A)–(D).

8 BETANSOS V. BARR

Betansos did not contest that his petty theft conviction is a

CIMT. Then, citing to Cortes Medina, the BIA affirmed the

IJ’s conclusion that Betansos’s indecent exposure conviction

was categorically a CIMT. In explaining why the BIA

affirmed the IJ’s decision, the BIA noted that Betansos bears

the burden of demonstrating he is eligible for relief. The BIA

found that Betansos had not met his burden of showing that

“under current law a realistic probability exists that

California would apply the [indecent exposure] statute,

either in his case or generically, to conduct that would not

involve moral turpitude.” 3 In other words, Betansos failed to

show that California would prosecute non-morally

turpitudinous conduct under § 314(1). The BIA also

highlighted that it found no published or unpublished

California cases since Nunez applying § 314(1) to non-

morally turpitudinous conduct. Accordingly, the BIA

concluded that Cortes Medina applied, that the IJ did not err

in relying on Cortes Medina, and that Betansos’s conviction

under § 314(1) was a CIMT.

Betansos timely appealed the BIA’s decision.

II.

We lack jurisdiction to review a final order of removal

based on a petitioner’s conviction of a CIMT. See

Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.

2009) (en banc) (citing 8 U.S.C. § 1252(a)(2)(C)). However,

we retain jurisdiction to determine whether a petitioner’s

3

For a state statute of conviction to be categorically broader than

the generic definition of a crime, “a realistic probability, not a theoretical

possibility, [must exist] that the State would apply its statute to conduct

that falls outside the generic definition of a crime.” Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007).

BETANSOS V. BARR 9

conviction is in fact a CIMT as defined in the Immigration

and Nationality Act (“INA”). Id.

III.

Generally, when determining whether a petitioner’s

conviction is categorically a CIMT, we undertake a two-step

process. See Rivera v. Lynch, 816 F.3d 1064, 1070 (9th Cir.

2016) (citing Marmolejo-Campos, 558 F.3d at 907–11).

“First, we identify the elements of the statute of conviction,

reviewing the BIA’s conclusions on this point de novo.”

Vinh Tan Nguyen v. Holder, 763 F.3d 1022, 1027 (9th Cir.

2014); see also Marmolejo-Campos, 558 F.3d at 907.

Second, after identifying the elements of the statute of

conviction, we engage in the categorical approach and

“compare the elements of the statute of conviction to the

generic definition of a [CIMT] and decide whether the

conviction meets that definition.” Castrijon-Garcia v.

Holder, 704 F.3d 1205, 1208 (9th Cir. 2013). In so doing,

“[w]e rely on our own generalized definition of moral

turpitude, which divides almost all CIMTs into two basic

types: those involving fraud and those involving grave acts

of baseness or depravity.” Rivera, 816 F.3d at 1070 (internal

quotation marks omitted).

However, our review of the BIA’s conclusion that a

statute of conviction is categorically a CIMT is “governed

by the same traditional principles of administrative

deference we apply to the [BIA’s] interpretation of other

ambiguous terms in the INA.” Marmolejo-Campos,

558 F.3d at 911. Accordingly, where “the [BIA] determines

that certain conduct is morally turpitudinous in a

precedential decision, we apply Chevron deference

regardless of whether the order under review is the

precedential decision itself or a subsequent unpublished

10 BETANSOS V. BARR

order that relies upon it.” Id. at 911. Under Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), we defer to an agency’s interpretation of

ambiguous language in a statute where Congress has

delegated authority to the agency to enforce the statute

containing the ambiguous text. Id. at 908–09. Nevertheless,

where the BIA issues a precedential decision with “no

reasoned explanation for its conclusion,” Chevron deference

is unwarranted. Rivera, 816 F.3d at 1070. Instances where

we do not defer to the BIA’s interpretation of ambiguous

statutory language, however, are rare. Id. at 1071.

A.

We first interpret the statute of conviction to identify its

essential elements. In relevant part, Cal. Penal Code § 314(1)

states, “[e]very person who willfully and lewdly . . .

[e]xposes his person, or the private parts thereof, in any

public place, or in any place where there are present other

persons to be offended or annoyed thereby . . . is guilty of a

misdemeanor.” Cal. Penal Code § 314(1), (2). California

Jury Instructions provide that to find a defendant guilty

under § 314, the government must prove:

(1) The defendant willfully exposed (his/her)

genitals in the presence of another person or

persons who might be offended or annoyed

by the defendant’s actions; [AND] (2) [w]hen

the defendant exposed (himself/herself),

(he/she) acted lewdly by intending to direct

public attention to (his/her) genitals for the

purpose of sexually arousing or gratifying

(himself/herself) or another person, or

sexually offending another person.

BETANSOS V. BARR 11

Judicial Council of Cal. Crim. Jury Instr. No. 1160, Indecent

Exposure (2018). Further, under California law,

[A] person does not expose his private parts

“lewdly” within the meaning of section 314

unless his conduct is sexually motivated.

Accordingly, a conviction of that offense

requires proof beyond a reasonable doubt that

the actor not only meant to expose himself,

but intended by his conduct to direct public

attention to his genitals for purposes of sexual

arousal, gratification, or affront.

People v. Archer, 119 Cal. Rptr. 2d 783, 785 (Ct. App. 2002)

(citing In re Smith, 7 Cal. 3d 362, 366 (1972)); see also

People v. Ballard, 16 Cal. Rptr. 2d 624, 630 (Ct. App. 1993)

(“This requirement of lewdness, which is needed for a

conviction of indecent exposure in California, supplies the

assurance that a conviction for indecent exposure is one

which necessarily involves moral turpitude.”); People v.

Carbajal, 8 Cal. Rptr. 3d 206, 208 (Ct. App. 2003).

Based on the above authorities and reviewing de novo, it

is clear that for a person to be convicted under § 314(1), the

following three elements are required: (1) the person must

have willfully exposed his or her genitals in the presence of

others who could be “offended or annoyed”; (2) such

exposure must have been sexually motivated, or “lewd”; and

(3) the exposure must have been made with the intent to

sexually arouse, gratify, or affront the offender or another

person.

B.

With this background in mind, we next consider whether

the BIA’s conclusion in Cortes Medina that a violation of

12 BETANSOS V. BARR

§ 314(1) categorically constitutes a CIMT is reasonable and

therefore entitled to Chevron deference. See Brand X,

545 U.S. at 980; Garfias-Rodriguez v. Holder, 702 F.3d 504,

507 (9th Cir. 2012) (en banc).

Under Chevron’s familiar two-step analysis, we first ask

if Congress has directly spoken to the issue; step two asks

whether the agency’s interpretation of ambiguous language

in the statute the agency is charged with administering is

reasonable. Garfias-Rodriguez, 702 F.3d at 508 n.2 (citing

Chevron, 467 U.S. at 842–44). We have stated that the term

“moral turpitude” “falls well short of clarity” and “is perhaps

the quintessential example of an ambiguous phrase.”

Marmolejo-Campos, 558 F.3d at 909; see also Nunez,

594 F.3d at 1130. Congress has not clearly defined “moral

turpitude,” and we move to Chevron’s second step.

We have hesitated to defer to the BIA’s general

understanding of the term “moral turpitude” because the

BIA’s “general definition of moral turpitude fails to

particularize the term in any meaningful way.” See

Marmolejo-Campos, 558 F.3d at 910 (internal quotation

marks omitted). Instead, “[w]e [have] rel[ied] on our own

generalized definition of moral turpitude, which divides

almost all CIMTs into two basic types: those involving fraud

and those involving grave acts of baseness or depravity.”

Rivera, 816 F.3d at 1071 (internal quotation marks omitted).

Our understanding of moral turpitude, we have stated, does

not differ materially from the BIA’s understanding.

Marmolejo-Campos, 558 F.3d at 910.

In Cortes Medina, the BIA explicitly invoked its

authority pursuant to Chevron and reaffirmed in Brand X to

interpret ambiguous language in the INA, and re-assessed

our definition of moral turpitude in Nunez. Cortes Medina,

26 I. & N. Dec. at 81. We turn to determining if the BIA’s

BETANSOS V. BARR 13

reassessment was reasonable. We begin our analysis with

Nunez.

1.

In 2010, we considered whether a conviction under the

same state statute of conviction at issue here, § 314(1), is

categorically a CIMT and concluded that it is not. Nunez,

594 F.3d at 1128. In so deciding, we reviewed the generic

definition of moral turpitude in the indecent exposure

context and determined that “actual infliction of harm or a

protected class of victim” or both is required for a sexual

offense to involve moral turpitude. Id. at 1132. We further

explained that the conduct at issue needed to be more than

just offensive in order for it to be morally turpitudinous. Id.

at 1132–33. Indeed, we noted that contemporary sexual

attitudes cannot dictate whether conduct is morally

turpitudinous. Id. at 1132.

Importantly, because Nunez reviewed an unpublished

BIA decision that provided scant analysis, and we defer to

such decisions to the extent they have the “power to

persuade,” we did not defer to the BIA’s unpersuasive and

limited explanation. Id. at 1133 (citing Skidmore v. Swift &

Co., 323 U.S. 134, 139 (1944)). The BIA only provided one

paragraph of analysis that rested on an unsupported

statement that because § 314(1) requires sexual motivation,

a conviction under § 314(1) is a CIMT. Id.

Turning to how California has applied § 314(1), 4 Nunez

recognized that public exposure is not necessarily lewd, id.

4

This discussion addressed the need to show that there is a “realistic

probability, not a theoretical possibility, that the State would apply [the

indecent exposure] statute to conduct that falls outside the generic

definition of [moral turpitude].” Duenas-Alvarez, 549 U.S. at 193.

14 BETANSOS V. BARR

at 1133, and discussed California state court cases. Nunez

divided California state court cases concerning § 314(1) into

those dealing with “exposure for sexual gratification” and

“exposure for sexual affront.” Id. at 1134–38. Addressing

the exposure for sexual gratification cases, we identified a

case where California courts upheld a conviction for

violating § 314 for nude dancing at bars. Id. at 1135–36

(citing People v. Conway, 162 Cal. Rptr. 877 (Cal. App.

Dep’t Super. Ct. 1979)). We concluded that “[w]hatever

one’s view of the merits of [nude dancing], it is simply not

base, vile, and depraved” and therefore California courts

have applied § 314(1) to non-morally turpitudinous conduct.

Id. at 1135–36. 5

Nunez also identified exposure-for-sexual-affront cases

in California that fell outside the ambit of morally

turpitudinous conduct. Id. at 1136–38. We noted two cases

in which the conduct did not rise to a CIMT. Id. at 1137

(citing Archer, 119 Cal. Rptr. 2d at 786–87, and People v.

Lionel M., No. H031030, 2007 WL 2924052 (Cal. Ct. App.

2007) (unpublished)). In both instances, the male defendant

exposed his genitalia to female observers. Id. We determined

that the conduct was “crass” and “inappropriate,” but not

“inherently base, vile, and depraved.” Id. at 1138.

Based on these two types of cases, we concluded that

because nude dancers and people who have made sexual

insults have been convicted under § 314(1), there was a

realistic probability that California would apply § 314(1) to

5

The dissent, however, challenged the majority’s reliance upon the

nude dancing conviction in Conway because that case has been expressly

disapproved by subsequent California courts, thereby undermining the

conclusion that there was a realistic probability that California would

apply § 314(1) to conduct falling outside the generic definition of a

CIMT. Nunez, 594 F.3d at 1139 (Bybee, J., dissenting).

BETANSOS V. BARR 15

non-morally turpitudinous conduct. Id. (citing Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

2.

Three years later in 2013, the BIA again addressed

whether a conviction under § 314(1) categorically

constitutes a CIMT, invoking its authority to revisit the

question under Brand X. Cortes Medina, 26 I. & N. Dec. at

80–81. The BIA recognized that determining whether a state

statute of conviction categorically is not a CIMT requires

demonstrating that a “‘realistic probability, not a theoretical

possibility,’ [exists] that the State would apply the statute to

prosecute conduct that falls outside the definition of moral

turpitude.” Id. at 82 (quoting Duenas-Alvarez, 549 U.S.

at 193). While acknowledging that “there is not a single

comprehensive definition of [CIMT],” the BIA identified

what it considers the two “essential elements” of CIMTs: a

culpable mental state and reprehensible conduct. Id.

(citations omitted). Citing its own case law, the BIA stated

that moral turpitude refers to “‘conduct which is inherently

base, vile, or depraved, and contrary to the accepted rules of

morality and duties owed between persons or to society in

general.’” Id. (quoting Matter of Ajami, 22 I. & N. Dec. 949,

950 (1999)). According to the BIA, “lewd or lascivious

intent” is required for indecent exposure to be morally

turpitudinous. Id. The BIA, therefore, disagreed with

Nunez’s generic definition of a CIMT in the indecent

exposure context. Id. at 84 (explaining that the BIA

considered Nunez’s definition of moral turpitude—which

required the infliction of harm or the involvement of a

protected class of victim—too narrow).

The BIA concluded that Nunez’s generic definition of a

CIMT is too narrow after analyzing prior BIA case law.

Pointing to Matter of P-, 2 I. & N. Dec. 117 (1944), and

16 BETANSOS V. BARR

Matter of Mueller, 11 I. & N. Dec. 268 (1965), Cortes

Medina considered cases where conduct did not constitute

CIMTs. Id. at 82–83. In Matter of P-, the BIA concluded that

the indecent exposure offense at issue—indecent exposure

in the presence of minor children in violation of Washington

State law—was not a CIMT because the exposure was not

intended to arouse sexual desires or made with lewd or

lascivious intent. Matter of P-, 2 I. & N. Dec. at 119, 121.

Likewise, in Matter of Mueller, the BIA determined the

crime there—Mueller’s public exposure of his genitals in

violation of Wisconsin law—did not constitute a CIMT

because a conviction under the state statute at issue in that

case could be secured without any demonstration of intent.

Cortes Medina, 26 I. & N. Dec. at 83 (citing Matter of

Mueller, 11 I. & N. Dec. at 270).

In contrast, the BIA pointed to Matter of Lambert, 11 I.

& N. Dec. 340 (1965), as a case where a violation of a state

statute constituted a CIMT. Id. Lambert was convicted under

Florida state law for renting rooms knowing that the rooms

would be used for lewdness or prostitution. Matter of

Lambert, 11 I. & N. Dec. at 340. The BIA concluded that

Lambert’s conviction was a CIMT. Id. at 342. Based on its

review of these three cases, the BIA also concluded that a

person convicted under § 314(1) commits a CIMT because a

conviction under this statute requires a finding of

“lewdness.” Cortes Medina, 26 I. & N. Dec. at 84.

The BIA, however, agreed with Nunez’s identification of

two types of cases prosecuted under § 314(1) that illustrate

whether violations of § 314(1) are categorically overbroad.

Id. Discussing the “sexual affront” cases first, the BIA

disagreed with our description in Nunez of the conduct in

Archer as a “tasteless prank.” Id. at 84–85 (citing Archer,

119 Cal. Rptr. 2d 783). The BIA viewed the driver’s

BETANSOS V. BARR 17

exposure of himself as a lewd act and therefore a CIMT. Id.

As to the sexual gratification, or nude dancing, type of cases,

here too the BIA focused on lewdness. Id. at 85.

Differentiating between “simple public nudity” and

“indecent exposure with a lewd intent,” the BIA determined

that California courts require lewd intent to uphold a

conviction. Id. (citations omitted).

Importantly, the BIA also considered whether there was

a “realistic probability” that a person would be convicted

under § 314(1) for “nude dancing or other conduct that does

not involve moral turpitude.” Id. at 86. Indeed, the BIA cited

to the California Supreme Court’s express disavowal of

considering nude dancing a violation of § 314(1), and Cortes

Medina’s failure to show that there is a realistic probability

that California would apply § 314(1) to conduct not

involving moral turpitude, to conclude that a realistic

probability did not exist. Id. at 85–86 (citing Morris v.

Municipal Court, 652 P.2d 51, 59, n.13 (Cal. 1982)).

Therefore, the BIA concluded that a violation of § 314(1) is

categorically a CIMT. Id. at 86.

Although Cortes Medina reviewed the same California

state cases Nunez considered, the BIA arrived at a different

conclusion because its generic definition of a CIMT is

broader than the definition Nunez adopted. In other words,

because Cortes Medina concluded that “lewd intent” makes

indecent exposure a CIMT, the offenses in the California

state cases discussed in Nunez as non-categorical matches of

§ 314(1) fit under the BIA’s broader definition once the BIA

identified lewd intent in each of the California cases. Id. at

84–85 (citing Archer, 119 Cal. Rptr. 2d 783, and Conway,

162 Cal. Rptr. 877).

18 BETANSOS V. BARR

3.

Under Brand X, we must defer to the BIA’s

interpretation of CIMT in Cortes Medina unless its

conclusion is unreasonable. See Brand X, 545 U.S. at 982

(“A court’s prior judicial construction of a statute trumps an

agency construction otherwise entitled to Chevron deference

only if the prior court decision holds that its construction

follows from the unambiguous terms of the statute and thus

leaves no room for agency discretion.”). As is clear, the

BIA’s conclusion in Cortes Medina contradicts our decision

in Nunez. We are now tasked with deciding whether we

should defer to Cortes Medina.

In Nunez, we determined that we defer to an unpublished

BIA decision with limited reasoning “only to the extent that

it has the ‘power to persuade.’” Nunez, 594 F.3d at 1133

(citing Skidmore, 323 U.S. at 139). The BIA’s unpublished

decision there did not merit deference because we reviewed

a decision that only provided one paragraph of analysis

containing an unsupported statement “that because § 314

requires a sexual motivation, it is a crime of moral

turpitude.” Id.

Unlike in Nunez, we are presented with Cortes Medina’s

analysis explaining how the BIA arrived at its generic

definition of moral turpitude. The key difference between

Nunez and Cortes Medina is the BIA’s conclusion that the

generic definition of moral turpitude in Nunez is too narrow.

Cortes Medina, 26 I. & N. Dec. at 84. Instead, according to

the BIA, the defining characteristic of a CIMT in the

indecent exposure context is whether the offense conduct

includes “lewd intent.” Id. at 83. The BIA arrived at this

conclusion in Cortes Medina after considering BIA case law

and supported it by reviewing California state court cases.

Id. at 83–86. The BIA also explained why violations of

BETANSOS V. BARR 19

§ 314(1) are a categorical match to its generic definition of a

CIMT by reviewing the same cases we considered in Nunez.

Cortes Medina does not misrepresent these authorities, its

analysis is reasoned and thorough, and it relies on published

BIA authority. Accordingly, we cannot say that the BIA’s

decision is unreasonable. Cf. Mellouli v. Lynch, 135 S. Ct.

1980, 1989 (2015) (holding that the BIA’s decision was not

owed deference because it “makes scant sense”); Rivera,

816 F.3d at 1071 (holding that the BIA’s decision was not

entitled to deference where it provided “no reasoning

whatsoever”); Coquico v. Lynch, 789 F.3d 1049, 1052–53

(9th Cir. 2015) (holding that the BIA’s decision was not

entitled to deference where it misunderstood the elements of

a crime under California law); Uppal v. Holder, 605 F.3d

712, 715 (9th Cir. 2010) (“Because the BIA failed to identify

the elements of § 268 [aggravated assault] correctly, its

CIMT analysis, in which it compares the elements it has

identified to the generic definition of moral turpitude, is

misdirected and so merits no deference from this Court.”).

Moreover, the fact that the BIA intended to provide an

interpretation of moral turpitude in the indecent exposure

context in Cortes Medina provides further support for

deferring to Cortes Medina. See Lagandaon v. Ashcroft,

383 F.3d 983, 987 (9th Cir. 2004) (“As long as the BIA

intended to issue an interpretation of a statute it enforces, its

interpretation of ambiguities in that statute is generally

accorded deference under [Chevron].” (internal quotation

marks omitted)); Cortes Medina, 26 I. & N. Dec. at 81

(invoking Chevron to determine whether a violation of

§ 314(1) is a CIMT). In reaching this decision, we recognize

that we defer to the BIA because it has exercised its

delegated policymaking judgment, and not because it is

better situated to interpret the INA. Garfias-Rodriguez,

702 F.3d at 515. Reasonable minds can differ when deciding

20 BETANSOS V. BARR

whether certain crimes are morally turpitudinous. Indeed, we

did so in Nunez. However, pursuant to Brand X, we must

defer to the BIA’s decision in Cortes Medina.

C.

Having concluded that we must defer to the BIA’s

decision in Cortes Medina, we now consider whether our

holding applies retroactively. In Garfias-Rodriguez, we held

that when “we overturn our own precedent following a

contrary statutory interpretation by an agency authorized

under Brand X, we analyze whether the agency’s statutory

interpretation (to which we defer) applies retroactively under

the test we adopted in Montgomery Ward [&. Co., Inc. v.

FTC, 691 F.2d 1322 (9th Cir. 1982)].” Id. at 520. We

conduct this analysis on a case-by-case basis. Id.

The five-factor Montgomery Ward framework asks,

(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 518 (quoting Montgomery Ward, 691 F.2d at 1333).

This analysis, however, should be conducted with “the

presumption of prospectivity” that accompanies exercises of

legislative power because a court’s decision to defer to an

BETANSOS V. BARR 21

agency’s decision under Brand X follows from the agency’s

“exercise of delegated legislative policymaking authority.”

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1144 (10th Cir.

2016) (explaining that a court’s deference to agency

interpretations of ambiguous statutes under Brand X, even

after a court declares what the law is, is rooted in the

assumption “that Congress had delegated legislative

authority to the BIA to make a ‘reasonable’ policy choice in

the face of [] statutory ambiguity”); see also Garfias-

Rodriguez, 702 F.3d at 519 (“[B]ecause Chevron and Brand

X are grounded in the deference we owe to agency

policymaking, . . . the presumption in favor of retroactive

application” does not apply.).

1.

For the first Montgomery Ward factor, we have stated

that whether an issue is one of first impression may not be

well suited to the immigration context because this factor

was developed in the National Labor Relations Board

(“NLRB”) context, which differs significantly from

immigration. Garfias-Rodriguez, 702 F.3d at 521

(explaining that because the NLRB is a unique agency that

relies on the common-law method to adjudicate cases,

immigration petitioners are not similarly situated to litigants

in NLRB proceedings, and cases of “first impression” are

captured in the second and third Montgomery Ward factors).

Accordingly, this factor is inapplicable here.

2.

“The second and the third factors are closely

intertwined.” Id. In Garfias-Rodriguez we explained that

“these two factors will favor retroactivity if a party could

reasonably have anticipated the change in the law such that

22 BETANSOS V. BARR

the new ‘requirement would not be a complete surprise.’” Id.

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

The second factor favors Betansos because Cortes

Medina represents an “abrupt departure” from Nunez. Prior

to Nunez, the BIA had no published opinion addressing

whether a conviction under § 314(1) constituted a CIMT.

See Nunez, 594 F.3d at 1133 (noting that the BIA’s decision

deeming the petitioner’s § 314(1) conviction a CIMT was

“an unpublished opinion that [did] not rely on prior

precedential decisions”). In February 2010, Nunez

established, in the first precedential opinion on the issue, that

such a conviction does not constitute a CIMT. Id. at 1138.

Nunez remained the authoritative, settled policy on this issue

for almost three years, until the BIA decided Cortes Medina

in January 2013 and took the exact opposite position—that a

conviction under § 314(1) categorically does constitute a

CIMT. See Cortes Medina, 26 I. & N. Dec. at 81 (explicitly

invoking authority under Brand X to disagree with Nunez).

Cortes Medina is fairly characterized as a “complete

surprise.” Garfias-Rodriguez, 702 F.3d at 521. The

government has identified nothing that would have put

Betansos on notice that relying on Nunez was unreasonable

or risky. This is not a case where there was an ongoing

conversation or a back-and-forth between this Court and the

BIA about the proper interpretation. See Lemus v. Lynch,

842 F.3d 641, 649 (9th Cir. 2016) (“[Petitioner] was on

notice that our approach was vulnerable based upon repeated

contrary decisions, not only from the BIA but from other

circuits as well.”). Nor is this a case where the former rule

was only in place for a short period of time or the rule was

subject to ongoing challenges or revisions. See Garfias-

Rodriguez, 702 F.3d at 521–22 (discussing factors that

diminish the reasonableness of reliance, including where the

BETANSOS V. BARR 23

rule was only in place for six months, there were “multiple

changes in the agency’s position regarding the proper rule,”

or the rule was subject to “ongoing legal challenges”).

Nunez was well-settled policy in this Circuit from

February 10, 2010, the date on which Nunez was decided,

until January 8, 2013, the date on which Cortes Medina was

decided. See Acosta-Olivarria v. Lynch, 799 F.3d 1271,

1276 (9th Cir. 2015) (holding that it was reasonable for the

petitioner to rely on a Ninth Circuit rule because the rule was

announced in a published opinion, “there was no contrary

BIA decision[,]” and “[p]eople within the Ninth Circuit

should be able to rely on our opinions in making decisions”);

see also Garfias-Rodriguez, 702 F.3d at 515 (explaining that

the former precedential Ninth Circuit rule “was authoritative

in this circuit at least until the agency issued a reasonable

interpretation to the contrary”).

In sum, Cortes Medina did not “fill a void.” Nunez had

already filled the void, years earlier. Instead, Cortes Medina

“abruptly departed” from Nunez, announcing a directly

contrary interpretation without reasonably clear warning.

Therefore, the second factor, analyzed in isolation, weighs

in Betansos’s favor.

3.

However, as noted above, the second and third factors

are closely intertwined. And, here, the third factor—the

extent to which Betansos relied on the former rule—weighs

against Betansos.

To demonstrate reliance, Betansos must identify a

specific “reliance interest.” See Garfias-Rodriguez, 702 F.3d

at 522 (finding that the third factor weighed against the

petitioner because he identified “only two specific reliance

24 BETANSOS V. BARR

interests” and neither was sufficient). In the context of a

criminal conviction that has immigration consequences, we

have held that reliance is presumed if the former, favorable

rule was in place at the time the petitioner pleaded guilty or

was convicted. Garcia-Martinez v. Sessions, 886 F.3d 1291,

1295 (9th Cir. 2018) (presuming, for purposes of

retroactivity analysis, that the petitioner was aware of the

relevant BIA interpretation at the time he pleaded guilty to

theft crimes); see also I.N.S. v. St. Cyr, 533 U.S. 289, 322

(2001) (“There can be little doubt that, as a general matter,

alien defendants considering whether to enter into a plea

agreement are acutely aware of the immigration

consequences of their convictions.”). But Betansos could not

have relied on Nunez when he pleaded guilty in 2002

because Nunez had not yet been decided.

We have also held that a petitioner’s expenditure of fees

in reliance on favorable, well-settled precedent may

constitute a sufficient reliance interest. See Acosta-

Olivarria, 799 F.3d at 1276 (holding that petitioner

reasonably relied on the Ninth Circuit rule that made him

eligible for adjustment of status because he applied for

adjustment and paid the accompanying $1,000 fee, and

“[r]etroactive application of the [BIA’s new rule] would

cause [petitioner’s] application for adjustment of status to be

denied, without any refund of the $1,000 fee”). But Betansos

does not assert that he paid fees during his immigration

proceedings in reliance on Nunez. Nor does Betansos assert

that he made strategic decisions or chose not to apply for

other forms of relief because he relied on the availability of

cancellation of removal under Nunez. See id. (petitioner

argued that he gave up the opportunity to voluntarily depart

in reliance on the former rule making him eligible for

adjustment of status).

BETANSOS V. BARR 25

Indeed, Betansos’s entire argument regarding reliance is

that he “clearly relied” on Nunez because “at all stages of

proceedings before the IJ, until the October 31, 2013 merits

hearing, [Betansos] was statutorily eligible for relief.” In

other words, Betansos believes that “reliance” simply means

that he cited the rule during his legal proceedings. This is not

the type of specific reliance interest we have generally held

sufficient. Betansos needed to identify a specific event or

action that he took (or failed to take) in the past in reliance

on Nunez that now carries new consequences or burdens

under Cortes Medina. See Garfias-Rodriguez, 702 F.3d

at 522 (“[R]etroactivity law . . . is meant to avoid new

burdens imposed on completed acts, not all difficult choices

occasioned by new law[.]”) (quoting Fernandez-Vargas v.

Gonzales, 548 U.S. 30, 46 (2006)). Betansos has not done

so.

In sum, although it would have been reasonable to rely

on Nunez between February 2010 and January 2013 (under

Montgomery Ward factor two), Betansos has not shown that

he in fact relied on Nunez (under Montgomery Ward factor

three).

4.

The fourth factor, the degree of the burden that a

retroactive order imposes on a party, weighs in Betansos’s

favor because “deportation alone is a substantial burden that

weighs against retroactive application of an agency

adjudication.” Garfias-Rodriguez, 702 F.3d at 523 (internal

quotation marks omitted).

5.

Finally, the statutory interest in applying a new rule tips

in the government’s favor because “non-retroactivity

26 BETANSOS V. BARR

impairs the uniformity of a statutory scheme, and the

importance of uniformity in immigration law is well

established.” Id. However, because the new rule announced

in Cortes Medina does not follow from the “plain language

of the statute,” this factor “only leans in the government’s

direction.” Id.

6.

On balance, we find that Cortes Medina should apply to

Betansos. The first factor is not in play. The fourth factor

clearly favors Betansos. The fifth factor favors the

government, but not strongly. And, although the second

factor arguably favors Betansos, we have held that factors

two and three are “intertwined.” Because factor three weighs

against Betansos in this case, we hold that overall the factors

support retroactive application against Betansos. See

Garfias-Rodriguez, 702 F.3d at 518 (noting that the overall

purpose of the Montgomery Ward test is to balance the

agency’s interest in changing its rule against the “regulated

party’s interest in being able to rely on the terms of a rule”)

(emphasis added). 6 Accordingly, the IJ properly applied

Cortes Medina and denied Betansos’s application for

cancellation of removal because Betansos is statutorily

ineligible. See 8 U.S.C. § 1229b(b)(1)(C).

IV.

We defer to the BIA’s decision in Cortes Medina that

§ 314(1) constitutes a CIMT. And we hold that Cortes

6

We note that the reliance analysis is highly fact dependent and

conducted on a case-by-case basis. See Garfias-Rodriguez, 702 F.3d

at 519–20. Although Betansos has not identified a specific reliance

interest that arose for him during the period that Nunez was well-settled

law, another petitioner might do so.

BETANSOS V. BARR 27

Medina applies retroactively to Betansos’s case. We

therefore deny Betansos’s petition.

PETITION DENIED.

MURGUIA, Circuit Judge, specially concurring, joined by

BASTIAN, District Judge:

While Brand X requires us to defer to the BIA’s decision

in Cortes Medina in the present case, I write separately to

note a tension between the realities of criminal prosecutions

and the tools we apply in immigration cases in which we

undertake the categorical approach. This tension concerns

the requirement that petitioners show a “‘realistic

probability’ of prosecution for conduct that falls outside the

generic definition” of a crime. Chavez-Solis v. Lynch,

803 F.3d 1004, 1009 (9th Cir. 2015) (quoting Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

The Supreme Court has clarified that in conducting the

categorical inquiry:

[T]o find that a state statute creates a crime

outside the generic definition of a listed crime

in a federal statute requires more than the

application of legal imagination to a state

statute’s language. It requires a realistic

probability, not a theoretical possibility, that

the State would apply its statute to conduct

that falls outside the generic definition of a

crime.

Duenas-Alvarez, 549 U.S. at 193. We have explained that

petitioners can make the requisite “realistic probability”

28 BETANSOS V. BARR

showing by pointing to state court decisions that apply the

statute to broader conduct than permitted in the generic

definition of a crime or by looking at the text of the state

statute itself. See Chavez-Solis, 803 F.3d at 1009–10.

However, a gap remains in the two approaches we have

so far endorsed for demonstrating that a “realistic

probability” of prosecution exists. The vast majority—and

nearly all—of criminal cases are resolved through plea

bargains. 1 These agreements between prosecutors and

defendants are not published, nor are they readily accessible

for review, yet they would illuminate the possibly broader

conduct for which individuals are prosecuted pursuant to

various state statutes. If we are to determine accurately

whether there is a “realistic probability” that a state would

charge an offense for broader conduct than that permitted by

the generic definitions of crimes, accounting for the vast

majority of criminal prosecutions makes sense. We currently

lack a mechanism for considering criminal plea bargains

when conducting a categorical analysis. However, it is worth

exploring how courts can account for plea deals. Developing

a mechanism for considering what conduct prosecutors

charge and results in defendants accepting pleas may be

1

See, e.g., United States v. Booker, 543 U.S. 220, 273–74 (2005)

(Stevens, J., dissenting in part) (noting that over 95 percent of criminal

prosecutions end in a plea bargain); U.S. Sentencing Comm’n, Overview

of Federal Criminal Cases, Fiscal Year 2017, at 5 (2018),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/r

esearch-publications/2018/FY17_Overview_Federal_Criminal_Cases.p

df (“In fiscal year 2017, the vast majority of offenders (97.2 [percent])

pleaded guilty. This high rate has been consistent for more than

15 years.”); Judicial Council of Cal., Court Statistics Report, at 114

(2016), http://www.courts.ca.gov/documents/2016-Court-Statistics-

Report.pdf (in California, 96.8 percent of state criminal felony cases

were resolved before trial, including 79.9 percent guilty pleas).

BETANSOS V. BARR 29

particularly helpful in cases such as this one where the BIA

relies on decades-old cases to assess whether present-day

conduct is morally turpitudinous. See Matter of Cortes

Medina, 26 I. & N. Dec. 79, 82–83 (2013) (discussing BIA

decisions from 1944, 1956, and 1965 in analyzing what

makes indecent exposure a crime of moral turpitude).

Therefore, we should be careful to consider all information

that could help us develop a full picture of what conduct

states prosecute under particular statutes.