“Retroactivity is not favored in the law.”
How later courts described this case
- “Retroactivity is not favored in the law.”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-2700
AMILCAR ANTONIO FRANCISCO-LOPEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No.: A041-811-480)
Immigration Judge: Nelson Vargas Padilla
Argued February 3, 2020
Before: SHWARTZ, SCIRICA, and RENDELL,
Circuit Judges
(Opinion Filed: May 15, 2020)
Lisa J. Kasdan (Argued)
Marcia Kasdan
Law Office of Marcia S. Kasdan
127 Main Street
1st Floor
Hackensack, NJ 07601
Counsel for Petitioner
Jeffrey R. Meyer
Craig Alan Newell, Jr. (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
O P I N I O N
RENDELL, Circuit Judge:
In 2012, Amilcar Francisco Lopez (Francisco), a lawful
permanent resident of the United States, pleaded guilty to
attempted second degree grand larceny in New York state.
2
More than five years later, Francisco was charged with
removability on the grounds that his guilty plea constituted a
conviction for a crime involving moral turpitude (CIMT) under
8 U.S.C. § 1182(a)(2)(A)(i)(I). Francisco challenged his
removal but two Immigration Judges (IJs) and eventually the
Board of Immigration Appeals (BIA) denied his challenges.
The BIA ruled that it would retroactively apply the new
standard for theft-related CIMTs that it had promulgated in
Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (B.I.A. 2016),
to Francisco’s case and that, under that standard, Francisco’s
2012 conviction rendered him removable.
Francisco now petitions for review of the BIA’s order.
We grant review and join several other circuits in ruling that
the BIA should not have retroactively applied Diaz-Lizarraga.
See Monteon-Camargo v. Barr, 918 F.3d 423 (5th Cir. 2019);
Garcia-Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018);
Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018); Lucio-Rayos
v. Sessions, 875 F.3d 573 (10th Cir. 2017). We will vacate the
BIA’s order and remand to the BIA for further proceedings.
I
Francisco is a citizen of Guatemala who was accorded
lawful permanent resident status in the United States in 1989.
In 2012, Francisco pleaded guilty to a charge of attempted
grand larceny in the second degree in violation of New York
Penal Law § 155.40(2)(b). The charging document shows that
Francisco obtained a stolen laptop. Francisco then contacted
the laptop’s owner and demanded that the owner reimburse
him for the amount of money Francisco had paid for the laptop.
During this exchange, Francisco sent the laptop’s owner
sexually explicit pictures that Francisco had found on the
3
laptop. The owner then contacted the police and Francisco was
arrested and charged with attempted second degree grand
larceny. After pleading guilty, Francisco was sentenced to five
years of probation. An order of protection for the victim was
placed against him. Francisco completed his probation in
2017.
In 2018, Francisco returned to Newark Liberty
International Airport from a trip abroad and sought admission
to the United States as a returning lawful permanent resident.
Instead, Francisco was classified as an arriving alien and an
applicant for admission. He was deemed inadmissible to the
United States under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien
convicted of a CIMT and was detained by the Department of
Homeland Security Immigration and Customs Enforcement
(DHS-ICE) at the Elizabeth Detention Center in Elizabeth,
New Jersey. Francisco was served with a Notice to Appear
alleging that he was subject to removal as an alien who had
been convicted of CIMT based on his 2012 conviction for
attempted grand larceny.
Francisco filed a motion to terminate the removal
proceedings, arguing that his 2012 conviction was not a CIMT.
An IJ denied the motion to terminate in an oral decision. After
the denial, Francisco filed an application for discretionary
relief of cancellation of removal as a lawful permanent
resident. A second IJ orally denied Francisco’s application for
discretionary relief. Francisco appealed both decisions to the
BIA.
The BIA dismissed Francisco’s appeal and adopted and
affirmed the IJs’ rulings. It first ruled that Francisco was
removable for having committed a CIMT. The BIA decided
4
that its 2016 precedent from Matter of Diaz-Lizarraga, 26 I. &
N. Dec. 847, in which the BIA promulgated a new, broader
standard for determining whether a larceny offense constituted
a categorical CIMT, should be applied retroactively to
Francisco’s 2012 conviction. In Diaz-Lizarraga, the BIA
noted that “[f]rom the Board’s earliest days we have held that
a theft offense categorically involves moral turpitude if—and
only if—it is committed with the intent to permanently deprive
an owner of property.” Id. at 849 (emphasis in original). But,
based on the BIA’s analysis of developments in criminal law
since adopting that standard, the BIA decided to “update [its]
existing jurisprudence,” id. at 852, to require that “a theft
offense is a crime involving moral turpitude if it involves an
intent to deprive the owner of his property either permanently
or under circumstances where the owner’s property rights are
substantially eroded,” id. at 853 (emphasis added).
In Francisco’s case, under the expanded Diaz-Lizarraga
standard, the BIA held that New York’s second degree grand
larceny statute “defines a categorical CIMT because it requires
the accused to take or withhold property with the intent to
permanently or virtually permanently appropriate it or deprive
the rightful owner of its use.” App. 7 (citing Matter of Obeya,
26 I. & N. Dec. 856, 858–61 (B.I.A. 2016); Diaz-Lizarraga, 26
I. & N. Dec. at 847, 854) (emphasis added). Thus, the BIA
ruled that Francisco was removable.
The BIA also upheld the second IJ’s denial of
discretionary relief and rejected Francisco’s claim that the IJ’s
actions had violated his due process rights.
Francisco then timely filed this appeal.
5
II 1
A. Crime Involving Moral Turpitude
Under the Immigration and Nationality Act (INA), an
alien who commits a “crime involving moral turpitude” is
“inadmissible,” 8 U.S.C. § 1182(a)(2)(A)(i)(I), and can be
removed, § 1227(a)(2)(A)(i). Although the INA does not
define the phrase “moral turpitude,” the BIA defines it
generally as “conduct that is inherently base, vile, or depraved,
contrary to the accepted rules of morality and the duties owed
other persons, either individually or to society in general.”
1
We lack jurisdiction to review a final order of removal issued
against an alien who is removable by reason of having
committed a crime of moral turpitude. 8 U.S.C.
§ 1252(a)(2)(C); see Mayorga v. Att’y Gen., 757 F.3d 126, 128
n.2 (3d Cir. 2014). We do, however, have jurisdiction to
review any constitutional claims or questions of law presented
on appeal. See Mayorga, 757 F.3d at 128 n.2. “[W]e review
the BIA’s legal conclusions de novo subject to the principles
of deference set forth in Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 844 (1984).” Mahn v. Att’y Gen.,
767 F.3d 170, 173 (3d Cir. 2014). Thus, we have jurisdiction
here, where the case before us presents a question of law.
Francisco argues that venue is improper in this court. But
Francisco waived this objection when he conceded that venue
is proper here “pursuant to 8 U.S.C. § 1252(b)(2), as this
judicial circuit is where the proceedings were completed.”
Pet’r Br. at 2; Khouzam v. Att’y Gen., 549 F.3d 235, 249 (3d
Cir. 2008) (indicating that 8 U.S.C. § 1252(b)(2) is non-
jurisdictional and therefore subject to waiver).
6
Partyka v. Att’y Gen., 417 F.3d 408, 413 (3d Cir. 2005)
(quoting Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir. 2004)).
When, as in this case, the government seeks to remove
a noncitizen under the INA on the basis of a prior state
conviction for a CIMT, we, as well as the BIA, “generally
employ a ‘categorical approach’ to determine whether the state
offense” qualifies as a CIMT. Moncrieffe v. Holder, 569 U.S.
184, 190 (2013); see Ildefonso-Candelario v. Att’y Gen., 866
F.3d 102, 104 (3d Cir. 2017). Under this approach, we analyze
the statute pursuant to which the noncitizen was convicted “to
ascertain the least culpable conduct necessary to sustain [a]
conviction under the statute.” Ildefonso-Candelario, 866 F.3d
at 104 (quoting Jean-Louis v. Att’y Gen., 582 F.3d 462, 465–
66 (3d Cir. 2009) (alteration in original)). “As a general rule,
a criminal statute is determined to define a crime as
categorically involving ‘moral turpitude only if all of the
conduct [the statute] prohibits is turpitudinous.’” Javier, 826
F.3d at 130 (quoting Partyka, 417 F.3d at 411) (alteration in
original). In the course of this inquiry, we focus only “on the
elements, rather than the facts, of a crime.” Descamps v.
United States, 570 U.S. 254, 263 (2013); see also Jean-Louis,
582 F.3d at 465 (quoting Knapik, 384 F.3d at 88).
B. Retroactivity of Diaz-Lizarraga
In Francisco’s case, the BIA retroactively applied the
expanded intent requirement it adopted in Diaz-Lizarraga,
determining that New York second degree grand larceny
qualified since the intent element under New York law aligns
with the CIMT intent requirement that “the owner’s property
7
rights are substantially eroded.” App. 6. 2 This was not the first
case in which it did so. In the BIA’s published decision in
Matter of Obeya, the BIA had retroactively applied Diaz-
Lizarraga where Obeya had been convicted of New York petit
larceny. See Matter of Obeya, 26 I. & N. Dec. 856 (B.I.A.
2016), rev’d by Obeya v. Sessions, 884 F.3d 442 (2d Cir.
2018). 3 The BIA here reasoned that because “larceny under
New York law defines a categorical CIMT because it requires
the accused to take or withhold property with the intent to
permanently or virtually permanently appropriate it or deprive
the rightful owner of its use,” it fell within its new expanded
CIMT definition. App. at 7 (citing Obeya, 26 I. & N. Dec. 858-
61). 4 The BIA, “[a]pplying the reasoning of Obeya,” held in
Francisco’s case that N.Y. Penal Law § 155.40(2) “also defines
2
Because the BIA explicitly ruled that its application of Diaz-
Lizarraga in Francisco’s case was retroactive, see App. 7, we
do not conduct an independent analysis of whether the BIA’s
application of Diaz-Lizarraga was retroactive. See, e.g.,
Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994)
(holding that application of a new rule is retroactive if it
“attaches new legal consequences to events completed before
its enactment”).
3
More recently, the BIA issued an unpublished, non-
precedential decision by one judge that reversed course and
found that Diaz-Lizarraga was not to be applied retroactively,
but we do not consider this non-precedential and unpublished
BIA decision, which is, “[a]t most . . . persuasive authority.”
Mahn, 767 F.3d at 173 (citing Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944)).
4
As we discuss below, the Second Circuit disagreed with the
BIA’s retroactive application of Diaz-Lizarraga.
8
a categorical CIMT” and that Francisco was therefore
removable. Id. 5
Retroactivity is not favored in the law. This applies
with full force to the BIA’s retroactive application of new law.
See, e.g., Velasquez-Garcia v. Holder, 760 F.3d 571, 579 (7th
Cir. 2014) (citing Bowen v. Georgetown Univ. Hosp., 488 U.S.
204, 208 (1988)). The Supreme Court has explained in the
context of retroactive administrative rulemaking that our
suspicion of retroactivity:
is deeply rooted in our jurisprudence, and
embodies a legal doctrine centuries older than
our Republic. Elementary considerations of
fairness dictate that individuals should have an
opportunity to know what the law is and to
conform their conduct accordingly; settled
expectations should not be lightly disrupted. For
that reason, the principle that the legal effect of
conduct should ordinarily be assessed under the
5
At the time the BIA rendered its decision in Francisco’s case,
the BIA’s decision in Obeya had been reversed by the Second
Circuit. Retroactivity aside, we could not affirm the BIA’s
decision on “the grounds upon which the agency acted,” SEC
v. Chenery Corp., 318 U.S. 80, 95 (1943), because the BIA
relied on precedent that was no longer good law. See
Henriquez Dimas v. Sessions, 751 F. App’x 368, 370 (4th Cir.
2018) (remanding to the BIA when the BIA opinion relied on
a prior precedential BIA opinion interpreting the definition of
a CIMT that had since been reversed by the court of appeals).
9
law that existed when the conduct took place has
timeless and universal appeal.
Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994)
(internal quotation marks, footnotes, and citations omitted). In
the immigration context, our aversion to retroactivity is
particularly significant and is generally informed by “the
longstanding principle of construing any lingering ambiguities
in deportation statutes in favor of the alien.” INS v. St. Cyr,
533 U.S. 289, 320 (2001) (quoting INS v. Cardoza–Fonseca,
480 U.S. 421, 449 (1987)).
To determine whether an administrative agency like the
BIA may retroactively apply a new rule in an adjudication, we
look first to the Supreme Court’s guidance in SEC v. Chenery
Corp., 332 U.S. 194 (1947). Chenery stated that the ill effects
of retroactivity in an adjudication by an administrative agency:
must be balanced against the mischief of
producing a result which is contrary to a statutory
design or to legal and equitable principles. 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. at 203.
In order to implement Chenery’s balancing test, we and
several other courts of appeals apply a framework first laid out
by the District of Columbia Circuit in Retail, Wholesale &
Dep’t Store Union, AFL-CIO v. NLRB, 466 F.2d 380 (D.C. Cir.
1972). We first indicated our preference for this framework in
our decision in E.L. Wiegand Division v. NLRB, 650 F.2d 463,
10
471 (3d Cir. 1981), and formally adopted it in Laborers’
International Union of North America, AFL-CIO v. Foster
Wheeler Corporation, 26 F.3d 375, 392 (3d Cir. 1994). Under
this well-established standard, an agency may not retroactively
apply a new rule of law in an adjudication if retroactive
application would create “manifest injustice.” Laborers’ Int’l,
26 F.3d at 390. 6 To determine whether retroactivity would
create “manifest injustice,” we, again following the District of
Columbia Circuit in Retail, Wholesale, have applied a five-
factor test to guide our analysis. Laborers’ Int’l, 26 F.3d at
392. Specifically, we look to:
(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 occupies a void in an unsettled
area of law, (3) the extent to which the party
against whom the new holding is applied in fact
relied on the former rule, (4) the degree of the
burden imposed, and (5) the statutory interest in
application of this new rule.
Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167, 180 (3d Cir.
2002) (quoting Laborers’ Int’l, 26 F.3d at 392). We now
proceed to apply this test to the BIA’s retroactive application
of Diaz-Lizarraga in Francisco’s case. 7
6
“[A]bsent a manifest injustice,” we “follow the [agency’s]
retrospectivity ruling.” Laborers’ Int’l, 26 F.3d at 390.
7
The Second Circuit and Ninth Circuit have previously
analyzed these factors in determining that Diaz-Lizarraga may
not be retroactively applied. See Garcia-Martinez, 886 F.3d
1291; Obeya, 884 F.3d 442. The Fifth Circuit and the Tenth
11
The first factor looks to “whether the particular case is
one of first impression.” Allegheny Ludlum, 301 F.3d at 180
(quoting Laborers’ Int’l, 26 F.3d at 392). “[A] case of ‘first
impression’ is a case in which one party successfully urged the
[agency] to change its rule while a case of ‘second impression’
is any subsequent case brought before the [agency] on the same
issue.” Beneli v. NLRB, 873 F.3d 1094, 1099 (9th Cir. 2017)
(citing Retail, Wholesale, 466 F.2d at 383–84, 387). Because
“[e]very case of first impression has a retroactive effect,” the
first factor weighs in favor of allowing retroactive application
of the new rule in cases of first impression. Laborers’ Int’l, 26
F.3d at 392 (quoting Chenery, 332 U.S. at 203).
This factor favors Francisco because his case clearly did
not present a question of first impression. Diaz-Lizarraga was
the case of first impression, because the BIA changed the intent
necessary for a larceny crime to involve moral turpitude. See
Diaz-Lizarraga, 26 I. & N. Dec. at 854–55. As this case was
brought subsequent to Diaz-Lizarraga, it is a case of second
impression. See Obeya, 884 F.3d at 445 (holding it was
presented with a case of second impression); Garcia-Martinez,
886 F.3d at 1295 (holding, in the alternative, that it was
presented with a case of second impression).
Second, we consider “whether the new rule represents
an abrupt departure from well established practice or merely
occupies a void in an unsettled area of law.” Allegheny
Ludlum, 301 F.3d at 180 (quoting Laborers’ Int’l, 26 F.3d at
Circuit decided this question without reference to the five-
factor test but reached the same result. See Monteon-Camargo,
918 F.3d 423; Lucio-Rayos, 875 F.3d 573.
12
392). We find that the second factor also favors Francisco.
See, e.g., Garcia-Martinez, 886 F.3d at 1295 (“[O]n its face,
the decision to abandon the literally-permanent deprivation test
was a rather abrupt change in the law, to say the least.”). The
government argues that Diaz-Lizarraga was not an “abrupt
departure” from prior law because the new Diaz-Lizarraga
standard simply formalized BIA precedent that had been
iteratively expanding the old standard without explicitly
overruling or replacing it. It makes a number of arguments
based on several BIA cases in which an intent to permanently
deprive may have been presumed or used to distinguish from a
temporary taking, urging that these precedents may have “led
the Board in Francisco’s case to the same conclusion that the
New York offense of second-degree grand larceny involves
moral turpitude.” Resp. Br. at 31.
But these arguments are belied by the very text of the
BIA’s decision in Diaz-Lizarraga. There, the BIA explicitly
indicated that it intended the change to constitute an “update
[to the BIA’s] existing jurisprudence,” 26 I. & N. Dec. at 852,
that the BIA would not “continu[e] to adhere to” its prior
standard, id. at 854, and that the BIA “overruled” any prior
decisions that “required a literal intent to permanently deprive
in order for a theft offense to be a crime involving moral
turpitude,” id. at 855. This indicates that the BIA intended to
and did make an “abrupt departure from well established
practice.” Allegheny Ludlum, 301 F.3d at 180.
Moreover, we find the Second Circuit’s rigorous
analysis and rejection of the government’s other arguments
relating to this factor to be helpful to our analysis. In Obeya,
the court noted that although the BIA had in certain cases
presumed intent to permanently deprive where the offense
13
statute did not explicitly require it, the BIA never actually
“dispense[d] with the requirement of an intent to permanently
deprive” before Diaz-Lizarraga. See Obeya, 884 F.3d
at 446–47 (discussing Matter of Jurado-Delgado, 24 I. & N.
Dec. 29 (B.I.A. 2006) and Matter of Grazley, 14 I. & N. Dec.
330 (B.I.A. 1973)).
We also agree with the Obeya court’s reasoning that the
BIA’s reliance on the changes in state theft statutes over time
undermines rather than supports the government’s argument.
884 F.3d at 445–46. The BIA had originally based its intent
requirement on a state-law distinction between permanent and
temporary takings that is no longer relevant. 8 Diaz-Lizarraga,
26 I. & N. Dec. at 851. In Diaz-Lizarraga, the BIA admitted
that its “case law ha[d] not kept pace with [those]
developments” in state criminal laws and, therefore, it was
required to “update [its] existing jurisprudence” by expanding
the intent requirement for theft CIMTs. Diaz-Lizarraga, 26 I.
& N. Dec. at 852; see Obeya, 884 F.3d at 445–46. Contrary to
the government’s urging, this context only bolsters our
conclusion that, in Diaz-Lizarraga, the BIA abruptly departed
from prior practice in order to “update [its] existing
jurisprudence” to reflect modern trends in state criminal laws.
See Diaz-Lizarraga, 26 I. & N. Dec. at 852. Accordingly, we
agree with the Second Circuit that “[g]iven the BIA’s case
law . . . and the Board’s own descriptions of its precedents,”
Diaz-Lizarraga was an express and abrupt departure from
8
This distinction, as the government notes, is now largely
anachronistic after most states adopted the Model Penal Code’s
expanded intent requirement for theft crimes. See Diaz-
Lizarraga, 26 I. & N. Dec. at 851–52.
14
longstanding BIA practice. Obeya, 884 F.3d at 448. The
second factor therefore favors Francisco.
Third, we consider the extent to which the party against
whom the new holding is applied relied on the former rule. The
government argues that we must look only to whether
Francisco “in fact relied” on the BIA’s prior precedent in
deciding whether to plead guilty to attempted second degree
grand larceny, citing our precedent in Allegheny Ludlum and
Laborers’ International. See Allegheny Ludlum, 301 F.3d at
180 (quoting Laborers’ Int’l, 26 F.3d at 392). The government
asserts that we should find that this factor bolsters its position
because Francisco has not presented any evidence that he
actually relied on the BIA’s prior precedent when he pleaded
guilty in 2012.
We take this opportunity to clarify our analysis of the
reliance factor as we will consider it in the immigration
context. As a general rule, an alien defendant’s decisions in a
criminal proceeding, especially his or her decisions about
whether to plead guilty, implicate distinctively weighty
reliance interests. The Supreme Court has observed that
“deportation is an integral part—indeed, sometimes the most
important part—of the penalty that may be imposed on
noncitizen defendants who plead guilty to specified crimes.”
Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (internal
footnote omitted); see also St. Cyr, 533 U.S. at 322 (“[A]lien
defendants considering whether to enter into a plea agreement
are acutely aware of the immigration consequences of their
convictions.”). In fact, defense counsel has a duty, under the
Sixth Amendment, to advise alien-defendants of the
immigration consequences of a guilty plea, including whether
the offense is a removable offense. Padilla, 559 U.S. at 369.
15
In the immigration context, therefore, defendants in criminal
proceedings are highly likely to rely on BIA precedent to
determine whether they will be deported if they are convicted
of a particular state crime. For this reason, the reliance factor
operates quite differently in the immigration context from the
way in which it operates in other contexts where courts
sometimes find that the adjudication implicates “relatively
modest stakes.” Laborers’ Int’l, 26 F.3d at 378.
For this reason, we hold that, in immigration cases, the
third factor will favor the party challenging retroactivity if it
would have been reasonable for the alien to have relied on the
BIA’s prior precedent. We follow the Second, Seventh, and
Ninth Circuits in distinguishing our analysis of the reliance
factor in the immigration context. See Obeya, 884 F.3d at 448
(“[W]hen conducting retroactivity analysis in the immigration
context, we look to whether it would have been reasonable for
a criminal defendant to rely on the immigration rules in effect
at the time that he or she entered a guilty plea.”); Velasquez-
Garcia, 760 F.3d at 582 (When analyzing the reliance factor,
“the critical question is not whether a party actually relied on
the old law, but whether such reliance would have been
reasonable.”); cf. Garcia-Martinez, 886 F.3d at 1295 (“[W]e
will presume that [the petitioner] was aware of the then existing
rule when he pled guilty. . . .”). Because it would have been
reasonable for Francisco to rely on the BIA’s prior precedent
in this case, we find that this factor favors Francisco.
Fourth, we consider “the degree of the burden imposed”
by retroactive application of a new rule. Allegheny Ludlum,
301 F.3d at 180 (quoting Laborers’ Int’l, 26 F.3d at 392). This
factor also favors Francisco. Removal from the United States
would impose a severe burden on him. See Padilla, 559 U.S.
16
at 365 (“We have long recognized that deportation is a
particularly severe ‘penalty’ . . . .” (quoting Fong Yue Ting v.
United States, 149 U.S. 698, 740 (1893))); Obeya, 884 F.3d at
445 (“‘[R]emoval from the United States, with life-changing
consequences,’ is a ‘massive’ burden for any immigrant.”
(quoting Lugo v. Holder, 783 F.3d 119, 121 (2d Cir. 2015)));
Garcia-Martinez, 886 F.3d at 1295 (“[T]here can be little
doubt that the change in the rule—the new rule—will impose
a new and severe burden upon [the petitioner].”) (footnote
omitted). In any case, the government concedes that this factor
favors Francisco.
Lastly, we consider “the statutory interest” in applying
the new rule retroactively. Allegheny Ludlum, 301 F.3d at 180
(quoting Laborers’ Int’l, 26 F.3d at 392). This factor, like each
of the other four factors, favors Francisco. As the government
points out, the BIA has authority to assess, subject to judicial
review, which criminal statutes create categorical CIMTs and
to ensure that its assessments are uniformly administered in
removal proceedings. But, in this case, we see no discernable
BIA uniformity interest in retroactively applying Diaz-
Lizarraga: the BIA had uniformly applied the prior standard
for more than seven decades before deciding to change course.
See Garcia-Martinez, 886 F.3d at 1295-96 (holding that the
BIA’s uniformity interests do not “have a great deal of weight
in a case like this one where the BIA lived with the preexisting
rule for seven decades and, in fact, until just a couple of years
ago would have treated [the petitioner] as a person who had not
committed CIMTs”); Obeya, 884 F.3d at 449 (holding that
uniformity “has hardly been a consistent feature of
immigration law” and that “the government has no compelling
interest in removing individuals for crimes that were not
considered to reflect so negatively on their character at the time
17
the offenses were committed”). This factor therefore favors
Francisco.
Each of the five factors that guide our “manifest
injustice” inquiry favor Francisco. Accordingly, we hold that
the BIA erred in retroactively applying the newly expanded
theft CIMT definition it set forth in Diaz-Lizarraga in
Francisco’s removal proceedings. We will vacate the BIA’s
order and remand to the BIA. 9
C. Discretionary Relief
Francisco also petitions for review of the BIA’s denial
of his application for discretionary cancellation of removal.
9
As the government correctly urges, instead of conducting our
own de novo inquiry into whether N.Y. Penal Law § 155.40(2)
constitutes a categorical CIMT under the previous CIMT test,
we remand Francisco’s case to the BIA for further proceedings
on that question. See, e.g., Gonzales v. Thomas, 547 U.S. 183,
186 (2006) (per curiam) (holding that we are “not generally
empowered to conduct a de novo inquiry into the matter being
reviewed and to reach [our] own conclusions based on such an
inquiry. Rather, the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.”) (internal quotation marks and
citations omitted). In addition to the government’s argument,
we also note that the BIA did not explore the contours of the
New York statute under the old CIMT definition and that N.Y.
Penal Law § 155.40(2) contains an extortion element that
might distinguish it from other larceny offenses such as the
New York petit larceny offense that was at issue in the Obeya
case. See Obeya, 884 F.3d at 443.
18
Francisco alleges that the IJ who denied his application
violated his “rights to due process” by “mischaracterizing prior
actions of the petitioner as evidence of ‘lack of respect for the
law’; giving no consideration to a long legal work history and
the deep connections to his United States citizen children; and
improperly weighting the negative factors in adjudicating the
application for relief from removal.” Pet’r Br. at 27. Because
these allegations are simply artfully labelled challenges to the
BIA’s unreviewable discretionary denial of Francisco’s
application for cancellation of removal, we do not have
jurisdiction. Patel v. Att’y Gen., 619 F.3d 230, 232 (3d Cir.
2010).
III
We will grant the petition for review, vacate the BIA’s
order, and remand to the BIA for further proceedings.
19