Joel Silva v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOEL EMPLEO SILVA, Nos. 16-70130

Petitioner, 17-73272

v. Agency No.

A045-476-155

MERRICK B. GARLAND, Attorney

General,

Respondent. ORDER AND

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 16, 2020*

San Francisco, California

Filed March 30, 2021

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit

Judges, and Ivan L.R. Lemelle, District Judge.**

*

The panel unanimously concludes this case is suitable for decision

without oral argument, and the case is therefore submitted on the briefs as

of April 16, 2020. See Fed. R. App. P. 34(a)(2).

**

The Honorable Ivan L.R. Lemelle, United States District Judge for

the Eastern District of Louisiana, sitting by designation.

2 SILVA V. GARLAND

Order;

Opinion by Judge Ikuta;

Concurrence by Judge Berzon

SUMMARY***

Immigration

The panel filed: 1) an order withdrawing the opinion and

concurring opinion appearing at 965 F.3d 724 (9th Cir. 2020),

denying the petition for rehearing en banc as moot, and

providing that the parties may file petitions for rehearing and

hearing en banc in response to the new opinion; 2) a new

opinion denying Joel Empleo Silva’s petitions for review of

decisions of the Board of Immigration Appeals; and 3) a new

concurring opinion. In the new opinion, the panel held that

the BIA did not err in concluding that petty theft under

section 484(a) of the California Penal Code is a crime

involving moral turpitude, and that the BIA did not abuse its

discretion in denying Silva’s motion to reopen to seek asylum

and related relief based on changed country conditions in the

Philippines.

Based on this court’s binding precedent, the panel

concluded that a violation of section 484(a) constitutes a

crime involving moral turpitude. In outlining the relevant

background, the panel observed that the BIA did not

conclusively hold that a theft offense may involve moral

turpitude even if it does not require the accused to intend a

***

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

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

SILVA V. GARLAND 3

literally permanent taking until Matter of Diaz-Lizarraga,

26 I. & N. Dec. 847 (BIA 2016), and that this court

subsequently concluded, in Garcia-Martinez v. Sessions,

886 F.3d 1291 (9th Cir. 2018), that the new rule announced

in Diaz-Lizarraga did not apply retroactively to the petitioner

in that case.

The panel first considered whether the BIA’s decision in

this case would be correct even if the new rule in Diaz-

Lizarraga did not apply retroactively to Silva. Accordingly,

the panel addressed whether section 484(a) was an offense

involving moral turpitude under the law as it existed before

Diaz-Lizarraga, observing that the California Supreme Court,

in People v. Avery, 27 Cal. 4th 49 (2002), held that a person

could be convicted under section 484(a) even if that person

did not intend to effect a literally permanent taking of

property. The panel explained that, both before and after

Avery, this court consistently held that section 484(a) was a

crime involving moral turpitude, but that the cases after Avery

did not acknowledge that section 484(a) did not necessarily

require an intent to take property permanently, and therefore

would not be an offense involving moral turpitude for

immigration purposes before Diaz-Lizarraga was decided.

Nevertheless, the panel concluded it was bound by

precedent, explaining that a three-judge panel must apply

binding precedent even when it is clearly wrong because (for

example) it failed to recognize an intervening change in the

law. The panel also explained that, because Avery predated

cases from this court holding that section 484(a) is a crime

involving moral turpitude, there was no intervening

controlling decision on state law. Accordingly, the panel

concluded it must hold that the BIA did not err in concluding

that Silva’s section 484(a) convictions made him removable

4 SILVA V. GARLAND

for having been convicted of two or more crimes involving

moral turpitude, regardless whether Diaz-Lizarraga applied

retroactively to Silva.

As to Silva’s motion to reopen, the panel held that the

BIA did not abuse its discretion in denying Silva’s motion on

the ground that he failed to establish prima facie eligibility

for asylum and related relief based on changed country

conditions. Silva sought to reopen proceedings based on his

history of drug use and his fear of persecution or torture

under Philippine President Rodrigo Duterte’s anti-drug

program. The panel noted that Silva did not contend that he

suffered past persecution, and merely speculated that

someone in the Philippines could report his past drug use to

the government, or that he might succumb to the temptation

to begin using drugs again. Because Silva failed to submit

any specific evidence that such events might occur, the panel

held that Silva failed to establish prima facie eligibility for

relief.

Judge Berzon concurred in the majority opinion in full,

but wrote separately to reiterate her view that the phrase

“crime involving moral turpitude” is unconstitutionally

vague.

COUNSEL

Manohar Raju, Public Defender; Matt Gonzalez, Chief

Attorney; Francisco Miguel Ugarte, Attorney; Office of the

Public Defender, San Francisco, California; Brian P.

Goldman, Orrick Herrington & Sutcliffe LLP, San Francisco,

California; Jennifer M. Keighley, Orrick Herrington &

Sutcliffe LLP, New York, New York; Ethan P. Fallon and

SILVA V. GARLAND 5

Katherine M. Kopp, Orrick Herrington & Sutcliffe LLP,

Washington, D.C.; for Petitioner.

Jeffrey Bossert Clark, Acting Assistant Attorney General;

John W. Blakeley, Assistant Director; Bryan S. Beier, Senior

Litigation Counsel; Christina P. Greer, Trial Attorney; Office

of Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent.

Philip L. Torrey, Supervising Attorney; Lena Melillo and Eric

Noble-Marks, Law Students, Crimmigation Clinic, Harvard

Law School, Cambridge, Massachusetts, for Amici Curiae

Florence Immigrant & Refugee Rights Project and Immigrant

Defense Project.

Jose H. Varela, Public Defender; Rachael Keast, Deputy

Public Defender; Marin County Office of the Public

Defender, San Rafael, California; for Amici Curiae California

Public Defender’s Association, Marin County Office of the

Public Defender, Los Angeles County Office of the Public

Defender, Santa Clara County Office of the Public Defender,

Alameda County Office of the Public Defender, Contra Costa

County Office of the Public Defender, Fresno County Office

of the Public Defender, Ventura County Office of the Public

Defender, Sonoma County Office of the Public Defender, and

Yolo County Office of the Public Defender.

Charles Roth, National Immigrant Justice Center, Chicago,

Illinois, for Amicus Curiae National Immigrant Justice

Center.

Jerome Mayer-Cantú, Oakland, California, for Amici Curiae

Law Professors and Clinicians.

6 SILVA V. GARLAND

Kari Hong, Ninth Circuit Appellate Project, Boston College

Law School, Newton, Massachusetts, for Amicus Curiae

Immigrant Legal Resource Center.

ORDER

The opinion and concurring opinion filed July 10, 2020,

and appearing at 965 F.3d 724 (9th Cir. 2020), are withdrawn.

They may not be cited by or to this court or any district court

of the Ninth Circuit.

A new opinion is filed simultaneously with the filing of

this order, along with a concurring opinion. The petition for

rehearing en banc is denied as moot. The parties may file

petitions for rehearing and petitions for rehearing en banc in

response to the new opinion, as allowed by the Federal Rules

of Appellate Procedure.

OPINION

IKUTA, Circuit Judge:

The petitioner here was convicted three times of petty

theft under section 484(a) of the California Penal Code. The

Board of Immigration Appeals (BIA) did not err in

concluding these convictions involved moral turpitude. See,

e.g., Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 (9th Cir.

2009). Therefore, the BIA did not abuse its discretion in

holding that petitioner was removable for having committed

two or more crimes involving moral turpitude. 8 U.S.C.

SILVA V. GARLAND 7

§ 1227(a)(2)(A)(ii). We also hold that the BIA did not abuse

its discretion in denying the petitioner’s motion to reopen.

I

Joel Empleo Silva was admitted to the United States as a

lawful permanent resident on June 27, 1996. After

admission, Silva was convicted of petty theft offenses under

the California Penal Code on three separate occasions: in

1998, he was convicted of petty theft in violation of sections

484(a) and 490.5,1 and in 2004 and 2007, he was convicted of

petty theft with a prior theft conviction in violation of

sections 484(a) and 666.2 Silva was also convicted of

attempted theft in violation of section 664 in 2000.

In May 2015, the Department of Homeland Security

charged Silva as removable for having been “convicted of

two or more crimes involving moral turpitude,” 8 U.S.C.

1

Section 484(a) states, in pertinent part, “Every person who shall

feloniously steal, take, carry, lead, or drive away the personal property of

another . . . is guilty of theft.” Cal. Pen. Code § 484(a). Section 484(a)

encompasses both petty and grand theft; the elements of petty theft are the

same as grand theft, apart from the amount or type of property taken. See

Cal. Pen. Code §§ 487, 488; United States v. Esparza-Ponce, 193 F.3d

1133, 1137 (9th Cir. 1999).

Section 490.5 prescribes the punishment for a “first conviction for

petty theft involving merchandise taken from a merchant’s premises.”

Cal. Pen. Code § 490.5. Silva was charged with stealing merchandise

from a J. C. Penney department store.

2

At all relevant times, section 666 allowed for heightened

punishments of persons convicted of petty theft after having served time

based on a prior petty theft conviction. See Cal. Penal Code § 666

(effective Jan. 1, 2001 to Sep. 8, 2010).

8 SILVA V. GARLAND

§ 1227(a)(2)(A)(ii),3 referencing Silva’s three petty-theft

offenses and his attempted-theft conviction. An immigration

judge held that Silva was removable as charged.

In December 2015, the BIA dismissed Silva’s appeal. It

rejected Silva’s argument that a violation of section 484(a)

did not qualify as a crime involving moral turpitude for two

reasons. First, it held that a violation of section 484(a) was

categorically a crime involving moral turpitude because the

Ninth Circuit had “repeatedly held that it is.” (citing Castillo-

Cruz v. Holder, 581 F.3d at 1160; Flores Juarez v. Mukasey,

530 F.3d 1020, 1022 (9th Cir. 2008) (per curiam); United

States v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir.

1999)).

Second, the BIA held that a violation of section 484(a)

was also a crime involving moral turpitude under BIA

precedent. It rejected Silva’s argument that under California

law, a violation of section 484(a) did not require the accused

to intend a literally permanent deprivation of the owner’s

property, while under BIA precedent, a theft involving moral

turpitude required such an intent. The BIA held that this

argument was based on a misinterpretation of earlier BIA

decisions “holding that moral turpitude does not inhere in

‘joyriding’ and similar offenses” that did not constitute theft

or larceny at common law. The BIA clarified that “moral

turpitude necessarily inheres in offenses constituting theft or

larceny as those terms were understood at common law,” and

3

Section 1227(a)(2)(A)(ii) provides, “Any alien who at any time after

admission is convicted of two or more crimes involving moral turpitude,

not arising out of a single scheme of criminal misconduct, regardless of

whether confined therefor and regardless of whether the convictions were

in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii).

SILVA V. GARLAND 9

common law larceny did not include an intent to cause a

literally permanent deprivation of a person’s property.

Therefore, an “offender commits a [crime involving moral

turpitude] whenever he takes the property of another with the

intention of disposing of the property in a manner that

permanently deprives the owner of its value; the baseness of

such an offense is not mitigated by the offender’s intention to

return the property to the owner after its value has been

vitiated.” (emphasis added). Accordingly, the BIA

reaffirmed that a violation of section 484(a) is a categorical

crime involving moral turpitude.

The BIA expressed no opinion on Silva’s further

argument that the phrase “crimes involving moral turpitude”

was unconstitutionally vague, holding that it lacked

jurisdiction to declare an act of Congress unconstitutional.

Silva petitioned for review. While the petition was

pending, Silva moved to reopen proceedings in light of

changed country conditions in the Philippines, for the purpose

of applying for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). In

his motion, Silva made the following allegations. After

Rodrigo Duterte was elected president of the Philippines, he

instituted an anti-drug program that included an initiative

called Oplan Tokhang—roughly translated as “knock and

plead”—which focused on low-level sellers and users. Under

Oplan Tokhang, police and local officials visited the houses

of suspected drug sellers and users and demanded that they

cooperate with the police. Suspects who did not cooperate,

or who initially cooperated but then returned to using or

selling, were reportedly killed.

10 SILVA V. GARLAND

Silva also alleged that his history of drug use would put

him at risk if he returned to the Philippines. In a declaration

submitted with his motion to reopen, Silva testified that he

had regularly used methamphetamine while in the United

States from the late 1990s until 2015 and that he had used a

cheap form of the drug called “shabu” daily with friends and

neighbors when he returned to the Philippines for three

months in early 2000. After being taken into immigration

custody in May 2015, Silva stopped using drugs and has

continued to abstain from drug use after his release, even

though he had “been tempted many times by [a] friend.”

Despite abstaining from drugs, Silva claims that if he returns

to the Philippines, the people who knew him when he was

there in 2000 could “rat him out” to the police as a former

drug user. Further, Silva believes that “it will be very hard

for [him] to resist the temptation to start using shabu” in the

Philippines.

The BIA denied Silva’s motion to reopen. The BIA

reasoned that Silva had not shown that Filipino authorities

were aware or would become aware of his past drug use. Nor

had Silva shown that he would use drugs in the Philippines.

Therefore, the BIA held that Silva had not made out a prima

facie case for asylum, withholding of removal, or CAT

protection. Silva petitioned for review.

We consolidated Silva’s two pending petitions for review.

See 8 U.S.C. § 1252(b)(6). We have jurisdiction over both

petitions based on 8 U.S.C. § 1252(a)(1). See Mata v. Lynch,

576 U.S. 143, 147 (2015).4

4

Silva stated that the criminal-alien bar, 8 U.S.C. § 1252(a)(2)(C),

applies here. He is mistaken. The criminal-alien bar limits our

jurisdiction “to review any final order of removal against an alien who is

SILVA V. GARLAND 11

II

We first turn to Silva’s petition for review of the BIA’s

December 2015 order of removal. On appeal, Silva argues

that he is not removable for having been convicted “of two or

more crimes involving moral turpitude,” 8 U.S.C.

§ 1227(a)(2)(A)(ii), because a violation of section 484(a) of

the California Penal Code does not involve moral turpitude.

To determine whether an alien’s crime of conviction

subjects the alien to removal under 8 U.S.C.

§ 1227(a)(2)(A)(ii), we apply the categorical approach set

forth in Taylor v. United States, 495 U.S. 575 (1990).

Marmolejo-Campos v. Holder, 558 F.3d 903, 912 (9th Cir.

2009) (en banc). That approach requires us to determine

“whether the crime of conviction contains all the elements of

the generic federal offense.” Renteria-Morales v. Mukasey,

551 F.3d 1076, 1081 (9th Cir. 2008).5

A

In making this determination, we begin by defining the

elements of the generic federal offense, id., in this case,

removable by reason of having committed” various criminal offenses,

including certain crimes involving moral turpitude “for which a sentence

of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i)(II);

see 8 U.S.C. § 1252(a)(2)(C). Because Silva’s petty-theft convictions

were not crimes for which such a sentence may be imposed, see Rusz v.

Ashcroft, 376 F.3d 1182, 1185 (9th Cir. 2004), the criminal-alien bar is not

applicable here.

5

Neither party argues that we should apply the modified categorical

approach here, see, e.g., Shepard v. United States, 544 U.S. 13, 26 (2005),

so we do not address that issue.

12 SILVA V. GARLAND

“crimes involving moral turpitude,” 8 U.S.C.

§ 1227(a)(2)(A)(ii). We “defer to the BIA’s articulation of

the generic federal definition ‘if the statute is silent’” and “the

BIA’s interpretation is ‘based on a permissible construction

of the statute.’” Renteria-Morales, 551 F.3d at 1081 (quoting

Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005)).

The BIA has defined the term “moral turpitude” as

referring to conduct that is “inherently base, vile, or depraved,

and contrary to the accepted rules of morality and the duties

owed between persons or to society in general.” Matter of

Silva-Trevino, 26 I. & N. Dec. 826, 833 (BIA 2016) (citation

omitted). The BIA has further explained that “[t]o involve

moral turpitude, a crime requires two essential elements:

reprehensible conduct and a culpable mental state.” Id. at 834

(citing Nino v. Holder, 690 F.3d 691, 695 (5th Cir. 2012)).

Although we have framed our definition of “moral turpitude”

in slightly different terms,6 it “does not differ materially from

the [BIA’s].” Marmolejo-Campos, 558 F.3d at 910 (citing

Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1058 n.9 (9th

Cir. 2006)). These definitions, however, are not helpful for

our task of identifying the elements of a generic “crime

involving moral turpitude” for purposes of the categorical

approach, because they fail “to ‘particularize’ the term in any

meaningful way.” Id.

Given the difficulty of determining the elements of

“crimes involving moral turpitude” as opposed to determining

the elements of a specific criminal offense, the BIA has

6

“[W]e have traditionally divided crimes involving moral turpitude

into two basic types: ‘those involving fraud and those involving grave

acts of baseness or depravity.’” Marmolejo-Campos, 558 F.3d at 910

(quoting Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005)).

SILVA V. GARLAND 13

adopted a different approach. Because the phrase “crimes

involving moral turpitude” refers to a category of crimes

rather than a specific offense with identifiable elements, cf.

8 U.S.C. § 1101(a)(43), the BIA has sensibly moved from

trying to define the phrase itself to instead giving examples of

the types of offenses that qualify as “crimes involving moral

turpitude,” see, e.g., Matter of Diaz-Lizarraga, 26 I. & N.

Dec. 847, 847 (BIA 2016). We have deferred to this

approach when articulated by the BIA in a published opinion.

See Marmolejo-Campos, 558 F.3d at 910–11.

Using this method of interpretation, the BIA had

determined that theft offenses involving moral turpitude are

a subset of theft offenses defined more generally. The BIA

has defined a generic theft offense for purposes of the

statutory section providing that the term “aggravated felony”

means, among other things, “a theft offense (including receipt

of stolen property),” 8 U.S.C. § 1101(a)(43)(G). In this

context, a “theft offense” is one that involves: “[1] taking of

property or an exercise of control over property [2] without

consent [3] with the criminal intent to deprive the owner of

rights and benefits of ownership, even if such deprivation is

less than total or permanent.” Gonzales v. Duenas-Alvarez,

549 U.S. 183, 189 (2007) (quoting Penuliar v. Gonzales,

435 F.3d 961, 969 (9th Cir. 2006)).

The BIA’s cases defining theft crimes involving moral

turpitude, however, are more nuanced. In several cases from

the 1940s, the BIA concluded that the offense of joyriding,

which could be committed with the intent to deprive an owner

of a car for a temporary period without intent to steal, did not

involve moral turpitude. Matter of D-, 1 I. & N. Dec. 143,

145 (BIA 1941); Matter of H-, 2 I. & N. Dec. 864, 866 (BIA

1947); see also Matter of P-, 2 I. & N. Dec. 887, 887 (BIA

14 SILVA V. GARLAND

1947). The BIA reasoned that only theft offenses which “by

their nature necessarily constitute theft or stealing as those

offenses are known at common law” would qualify, Matter of

D-, 1 I. & N. Dec. at 145, and that “before the crime of theft

or stealing is deemed one involving moral turpitude” an

offense “must be one which involves a permanent taking as

distinguished from a temporary one,” Matter of H-, 2 I. & N.

Dec. at 865.

Despite these joyriding cases, the BIA did not

conclusively resolve whether theft offenses could involve

moral turpitude even when a person did not intend a literally

permanent deprivation of property. See Matter of Jurado-

Delgado, 24 I. & N. Dec. 29, 33 (BIA 2006). In Jurado-

Delgado, the petitioner argued that his offense of conviction,

retail theft, was not a crime involving moral turpitude

because “the statute does not require an intent to permanently

deprive the owner of the use or benefit of the merchandise.”

Id. The BIA stated it “need not decide whether the premise

of the respondent’s argument is correct, i.e., that if the

offense required only an intent to temporarily deprive the

owner of the use or benefit of the property taken, the crime

would not be one of moral turpitude.” Id. Instead, the BIA

held it was reasonable to assume that the taking was with the

intention of retaining the merchandise permanently. Id.

at 33–34; see also Matter of Grazley, 14 I. & N. Dec. 330,

333 (BIA 1973) (treating a statute that did not require proof

that a taking was permanent as divisible, and presuming that

the accused intended the permanent taking of property).

Against this backdrop, Matter of Diaz-Lizarraga

reexamined the elements of a theft offense involving moral

turpitude. 26 I. & N. Dec. at 850. In doing so, the BIA

explained that a “careful examination” of its “early cases

SILVA V. GARLAND 15

reflects that [its] purpose in adopting the ‘intent to

permanently deprive’ requirement was to distinguish between

substantial and reprehensible deprivations of an owner’s

property on the one hand and, on the other, mere de minimis

takings in which the owner’s property rights are compromised

little, if at all.” Id. The BIA noted that its early decisions

were aimed at excluding joyriding or other short-term and de

minimis takings of property, id. at 853–54, and did not

address other sorts of temporary takings, such as those that

“appropriate[d] a major portion of [the property’s] economic

value,” id. at 848, 851–52. Since its early decisions, the BIA

observed, criminal law had evolved, and most jurisdictions

had abandoned the “traditional dichotomy of permanent

versus temporary takings.” Id. at 851. Accordingly, the BIA

updated its jurisprudence to reflect that of the majority of

states and the Model Penal Code, and held 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. Under this definition, a

theft offense may involve moral turpitude “despite the fact

that it does not require the accused to intend a literally

permanent taking.” Id. at 852 (emphasis omitted). Further,

the BIA stated that “to the extent that any of our prior

decisions have required a literal intent to permanently deprive

in order for a theft offense to be a crime involving moral

turpitude, those decisions are overruled.” Id. at 855.

The BIA recognized that its decisions in Matter of

Grazley and Matter of Jurado-Delgado attempted to “finesse”

the distinction between de minimis takings and “those more

serious cases in which property is taken ‘temporarily’ but

returned damaged or after its value or usefulness to the owner

has been vitiated” by “indulging a commonsense

16 SILVA V. GARLAND

‘assumption’ that in cases involving a theft of cash or

merchandise from a retail establishment, the offender’s intent

was to permanently deprive the owner of the cash or

merchandise.” Id. at 854 & n.11. The BIA approved the

rulings in those cases, but noted that given the “strictures of

the categorical approach” in recent Supreme Court cases, it

was necessary to update the moral turpitude standard “to

more accurately distill the state of the criminal law in this

area.” Id. at 854 n.11.

We subsequently concluded that Matter of Diaz-

Lizarraga’s “decision to abandon the literally-permanent

deprivation test was a rather abrupt change in the law.”

Garcia-Martinez v. Sessions, 886 F.3d 1291, 1295 (9th Cir.

2018). Garcia-Martinez acknowledged that the BIA had

deviated from the permanent-deprivation test “from time to

time,” but held that “the BIA did not overturn the requirement

that a taking must be literally permanent” until it decided

Matter of Diaz-Lizarraga. Id.

Having reached this conclusion, Garcia-Martinez asked

whether the retroactive application of Diaz-Lizarraga made

a difference to the petitioner in that case. Garcia-Martinez

concluded that, because the petitioner’s crime of conviction

under Oregon law included temporary takings, it would not

have qualified as a theft offense involving moral turpitude but

for Diaz-Lizarraga’s new rule, id. at 1295–96. As a result,

“[i]f the new rule [did] not apply retroactively, the BIA’s

decision in [that] case was in error.” Id. at 1294 & n.4.

Because the BIA’s ruling could not stand unless the

agency’s new rule applied retroactively, Garcia-Martinez

turned to the retroactivity question. In order to determine

whether Diaz-Lizarraga could be applied retroactively to the

SILVA V. GARLAND 17

petitioner in that case, Garcia-Martinez had to apply our five-

factor test for determining when rules promulgated through

agency adjudication are retroactive. See Montgomery Ward

& Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982); see also

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

2007). This test must be applied individually to the petitioner

at issue. “In every case in which we have applied the

Montgomery Ward test, we have done so on a case-by-case

basis, for example, by analyzing whether a petitioner actually

relied on a past rule, or by concluding that retroactivity as

applied is impermissible.” Garfias-Rodriguez v. Holder,

702 F.3d 504, 519 (9th Cir. 2012) (en banc).

Applying the Montgomery Ward test, Garcia-Martinez

held that the new rule announced in Matter of Diaz-Lizarraga

did not apply to the petitioner in the case before it, in part

because we presumed that the petitioner would have relied on

the BIA’s prior rule that temporary takings did not constitute

thefts involving moral turpitude. 886 F.3d at 1295–96. No

Ninth Circuit case or Oregon state court decision affected the

analysis of whether petitioner’s reliance on the BIA’s pre-

Diaz-Lizarraga case law was reasonable. Cf. Acosta-

Olivarria v. Lynch, 799 F.3d 1271, 1276 (9th Cir. 2015)

(holding, for purposes of the Montgomery Ward test, that the

petitioner had reasonably relied on a Ninth Circuit decision

that was in tension with a prior BIA decision).

B

Following Garcia-Martinez’s lead, we first consider

whether the BIA’s decision in this case—that petitioner’s

conviction of a section 484(a) offense is a theft offense

involving moral turpitude—would be correct even if the new

rule in Matter of Diaz-Lizarraga did not apply retroactively

18 SILVA V. GARLAND

to this petitioner. In order to make such a determination, we

must determine whether section 484(a) was a theft offense

involving moral turpitude under our law as it existed before

Matter of Diaz-Lizarraga.

Section 484(a) of the California Penal Code provides, in

pertinent part, “Every person who shall feloniously steal,

take, carry, lead, or drive away the personal property of

another . . . is guilty of theft.” Cal. Pen. Code § 484(a). In

1993, a California appellate court held that “[a] person who

intends only to temporarily deprive an owner of property,

albeit while acquiring or depriving the owner of the main

value of the property, does not intend to permanently deprive

the owner of the property and therefore does not have the

intent to commit theft, as that crime is defined under

California law.” People v. Marquez, 16 Cal. App. 4th 115,

123 (1993) (emphasis omitted).

The California Supreme Court subsequently cast doubt on

this statement of law. See People v. Davis, 19 Cal. 4th 301,

318 (1998). In Davis, the California Supreme Court

explained in dicta that section 484(a) includes the intent to

“deprive the owner permanently of possession of the

property,” but “[t]he word ‘permanently,’ as used here is not

to be taken literally,” id. at 307 (citation omitted), and

temporary takings could amount to theft in some

circumstances, id. at 307 & n.4. In support, Davis explained

that section 484(a) “is declaratory of the common law,” id.

at 304 n.1, and cited cases where defendants were convicted

of larceny even though they did not intend a literally

permanent deprivation, id. at 308–15.

After Davis, we held that a conviction under section

484(a) for petty theft qualified as a crime involving moral

SILVA V. GARLAND 19

turpitude. See Esparza-Ponce, 193 F.3d at 1136–37.

Esparza-Ponce explained that the BIA had already held that

“petty larceny is a crime involving moral turpitude.” Id.

at 1136.

An appellate court subsequently applied Davis’s dicta and

held that “an intent by one to do less than retain property

permanently will constitute theft when the owner’s property

was dealt with in such a way that there was a substantial risk

of permanent loss.” People v. Zangari, 89 Cal. App. 4th

1436, 1447 (2001).

In 2002, the California Supreme Court resolved the

tension between Marquez and Zangari by adopting the dicta

in Davis. See People v. Avery, 27 Cal. 4th 49, 55 (2002).

Avery held that for purposes of section 484(a), “the intent to

deprive the owner of property only temporarily, but for so

extended a period of time as to deprive the owner of a major

portion of its value or enjoyment, satisf[ies] the California

requirement of intent to deprive the owner of the property

permanently.” Id. at 54–55. As in Davis, the California

Supreme Court explained that this was the intent required to

commit larceny at common law. Id. at 58. In short, a person

could be convicted under section 484(a) even if that person

did not intend to effect a literally permanent taking of

property. Id. at 55.

After Avery was decided, we continued to rely on

Esparza-Ponce. See Castillo-Cruz, 581 F.3d at 1159; Flores

Juarez, 530 F.3d at 1022. In Flores Juarez, decided six years

after Avery, the petitioner was “convicted of three separate

petty theft offenses in violation of California Penal Code

§§ 484 and 488.” 530 F.3d at 1022. Without mentioning

Avery, we relied on Esparza-Ponce to conclude that “[p]etty

20 SILVA V. GARLAND

theft is a crime involving moral turpitude.” Id. And in

Castillo-Cruz, decided seven years after Avery, we stated that

petty theft in violation of section 484(a) was a crime

involving moral turpitude because it required “the specific

intent to deprive the victim of his property permanently.”

581 F.3d at 1160 (citation omitted). Thus, we have

consistently held that a conviction under section 484(a) is a

crime involving moral turpitude, and the BIA has never held

to the contrary, despite making changes to its generic

definition of a theft offense. See, e.g., In re Kochlani, 24 I. &

N. Dec. 128, 129 (BIA 2007) (“[T]here is no dispute that the

California offense of grand theft is a crime involving moral

turpitude.” (citing Esparza-Ponce, 193 F.3d at 1136–37)); In

re Kotliar, 24 I. & N. Dec. 124, 125 (BIA 2007) (similar).

In analyzing a theft offense under section 484(a),

Esparza-Ponce, Flores Juarez, and Castillo-Cruz failed to

consider the difference between the intent requirement in

section 484(a) and the BIA’s articulation of the intent

required for a theft offense involving moral turpitude before

Matter of Diaz-Lizarraga. In other words, our cases did not

acknowledge that section 484(a) did not necessarily require

an intent to take property permanently, and therefore that

such an offense would not be a theft offense involving moral

turpitude for immigration purposes before Diaz-Lizarraga

was decided.

But we are nevertheless bound by our precedent. “[T]he

first panel to consider an issue sets the law not only for all the

inferior courts in the circuit, but also future panels of the

court of appeals.” Hart v. Massanari, 266 F.3d 1155, 1171

(9th Cir. 2001). In our circuit, a three-judge panel must apply

binding precedent even when it is clearly wrong because (for

example) it failed to recognize an intervening change in the

SILVA V. GARLAND 21

law. See United States v. Contreras, 593 F.3d 1135, 1136

(9th Cir. 2010) (en banc) (holding that a three-judge panel

lacked authority to overrule decisions that failed to recognize

an intervening amendment to a sentencing guideline). Only

an en banc court has the power to fix these errors. See Sierra

Forest Legacy v. Sherman, 646 F.3d 1161, 1189 (9th Cir.

2011). A three-judge panel can reconsider the law of the

circuit only when “the relevant court of last resort” has

“undercut the theory or reasoning underlying the prior circuit

precedent in such a way that the cases are clearly

irreconcilable,” Miller v. Gammie, 335 F.3d 889, 900 (9th

Cir.2003) (en banc), or when a three-judge panel must follow

an agency construction entitled to Chevron deference rather

than a prior judicial interpretation of an ambiguous statute,

see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 982 (2005).

Because Avery predates Castillo-Cruz and Flores Juarez,

there is no “intervening decision on controlling state law by

a state court of last resort,” Gammie, 335 F.3d at 893, and we

are “bound to reach the same result” as our precedent,

Massanari, 266 F.3d at 1170. Accordingly, we must hold

that the BIA did not err in concluding that Silva was

removable on the ground that he was “convicted of two or

more crimes involving moral turpitude,” 8 U.S.C.

§ 1227(a)(2)(A)(ii), regardless whether Diaz-Lizarraga

applies retroactively to Silva.7

7

Silva’s argument that the phrase “crimes involving moral turpitude”

is unconstitutionally vague is foreclosed by our recent opinion in

Martinez-de Ryan v. Whitaker, 909 F.3d 247, 251–52 (9th Cir. 2018), cert.

denied sub nom. Martinez-de Ryan v. Barr, 140 S. Ct. 134 (2019).

Although Silva purports to raise a new argument regarding why the phrase

is void for vagueness, we are bound by prior circuit law even when a new

litigant raises arguments that are “characterized differently or more

22 SILVA V. GARLAND

Because we conclude that, based on our binding

precedent, a violation of section 484(a) constitutes a crime

involving moral turpitude, we need not address the question

whether Matter of Diaz-Lizarraga is retroactively applicable

in this case and need not apply the Montgomery Ward test to

answer that question. See Garcia-Martinez, 886 F.3d

at 1295–96.

III

We next turn to the BIA’s denial of Silva’s motion to

reopen. Although Silva did not seek relief from removal at

his initial hearing, an alien may move to reopen proceedings

for the purpose of submitting new applications for relief. See

8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(1). We review

the denial of a motion to reopen for an abuse of discretion and

reverse only if the BIA’s decision was “arbitrary, irrational,

or contrary to law.” Valeriano v. Gonzales, 474 F.3d 669,

672 (9th Cir. 2007) (citation omitted).

Where, as here, the motion to reopen is based on changed

circumstances in the country to which removal has been

ordered, the movant must: (1) produce evidence that

conditions have changed in the country of removal,

(2) demonstrate that the evidence is material, (3) show that

the evidence was not available and would not have been

discovered or presented at the previous hearing, and

(4) demonstrate that the new evidence, when considered

together with the evidence presented at the original hearing,

would establish prima facie eligibility for the relief sought.

persuasively.” United States v. Ramos-Medina, 706 F.3d 932, 939 (9th

Cir. 2013).

SILVA V. GARLAND 23

See 8 U.S.C. 1229a(c)(7)(ii); 8 C.F.R. § 1003.2(c)(1);

Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017).8

Here, the BIA denied the motion to reopen on the ground

that Silva had not established the fourth prong: that the new

evidence would establish a prima facie case for the relief

sought. Therefore, our review is limited to that ground. See

Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000). To

establish a prima facie case, the movant must adduce

evidence that, along with the facts already in the record, “will

support the desired finding if evidence to the contrary is

disregarded.” Maroufi v. INS, 772 F.2d 597, 599 (9th Cir.

1985); see also Sakhavat v. INS, 796 F.2d 1201, 1204 (9th

Cir. 1986) (stating that, at the motion-to-reopen stage, the

BIA must determine whether the movant’s affidavits “on their

face cumulatively establish a clear probability” that he is

entitled to the relief sought). The BIA may not make

credibility determinations on motions to reopen, Yang v.

Lynch, 822 F.3d 504, 509 (9th Cir. 2016), and “must accept

as true the facts asserted by the [movant], unless they are

‘inherently unbelievable,’” Agonafer, 859 F.3d at 1203

8

Section 1229a(c)(7) provides, “There is no time limit on the filing

of a motion to reopen if the basis of the motion is to apply for relief under

sections 1158 [asylum] or 1231(b)(3) [withholding of removal] of this title

and is based on changed country conditions arising in the country of

nationality or the country to which removal has been ordered, if such

evidence is material and was not available and would not have been

discovered or presented at the previous proceeding.” 8 U.S.C.

§ 1229a(c)(7)(ii) (footnote omitted). The regulations governing such

motions appear at 8 C.F.R. § 1003.2. We have held that these regulations

also apply to claims under the Convention Against Torture. Go v. Holder,

744 F.3d 604, 609 (9th Cir. 2014).

24 SILVA V. GARLAND

(quoting Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)).9

Nevertheless, “[c]ourts have recognized that a prima facie

case of the clear probability of persecution cannot be

established from speculative conclusions or vague

assertions.” Maroufi, 772 F.2d at 599; see also Nagoulko v.

INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (holding that an

alien’s fear of a hostile political party regaining power in her

country is “too speculative to be credited as a basis for fear of

future persecution” absent “specific evidence” suggesting that

such an event will occur). Therefore, “[a]ffidavits submitted

in support of motions to reopen deportation proceedings must

contain specific facts in order to carry the burden of

establishing a clear probability of persecution.” Maroufi,

772 F.2d at 600.

We turn to the question whether Silva established a prima

facie case for asylum or withholding of removal. Silva does

not contend that he suffered past persecution in the

Philippines, so to qualify for asylum he must demonstrate “a

well-founded fear of future persecution” in the Philippines,

8 C.F.R. § 1208.13(b), “on account of race, religion,

nationality, membership in a particular social group, or

political opinion,” 8 U.S.C. § 1101(a)(42). In the absence of

past persecution, an applicant must prove both a subjective

fear of future persecution, 8 C.F.R. § 1208.13(b)(2)(i)(A), and

an objectively “reasonable possibility” of future persecution,

8 C.F.R. § 1208.13(b)(2)(i)(B). “The objective component

requires a showing, by credible, direct, and specific evidence

in the record, of facts that would support a reasonable fear of

persecution.” Limsico, 951 F.2d at 212 (citation omitted).

9

“[W]here some of the evidence is developed at a hearing, the [BIA]

is of course free to interpret that evidence free from inferences in favor of

the moving party.” Limsico, 951 F.2d at 213 (citation omitted).

SILVA V. GARLAND 25

“Speculation on what could occur is not enough to establish

a reasonable fear.” Bartolome v. Sessions, 904 F.3d 803, 814

(9th Cir. 2018).

Section 1231(b)(3) provides for withholding of removal.

8 U.S.C. § 1231(b)(3). To qualify for this form of relief, the

applicant must demonstrate that it is “more likely than not

that he or she would be persecuted on account of race,

religion, nationality, membership in a particular social group,

or political opinion upon removal to [the country in

question].” 8 C.F.R. § 1208.16(b)(2). The “more likely than

not” standard for withholding of removal is “more stringent”

than the “reasonable possibility” standard for asylum, and

therefore an applicant who is unable to show a “reasonable

possibility” of future persecution “necessarily fails to satisfy

the more stringent standard for withholding of removal.”

Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004);

accord Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th

Cir. 2019).

Here, the BIA did not abuse its discretion in concluding

that Silva failed to establish a prima facie case for asylum or

withholding of removal. In his declaration, Silva speculated

that someone in the Philippines could report his past drug use

to the government, or that he might succumb to the

temptation to begin using drugs again. Silva did not,

however, submit any “specific evidence” that such events

might occur, and these possibilities are “too speculative to be

credited as a basis for fear of future persecution.” Nagoulko,

333 F.3d at 1018. Accordingly, the BIA did not abuse its

discretion in concluding that Silva failed to establish a prima

facie case for asylum. Therefore, he also “necessarily fail[ed]

to satisfy the more stringent standard for withholding of

removal.” Mansour, 390 F.3d at 673.

26 SILVA V. GARLAND

We next turn to the question whether Silva established a

prima facie case for protection under the Convention Against

Torture (CAT). To qualify for CAT protection, the applicant

must “establish that it is more likely than not that he or she

would be tortured if removed to [the country in question].”

8 C.F.R. § 1208.16(c)(2); accord Duran-Rodriguez, 918 F.3d

at 1029.

It was neither arbitrary nor irrational for the BIA to

conclude that Silva’s speculations in his motion to reopen and

declaration were insufficient to show “that it is more likely

than not that he would be tortured if removed to [the

Philippines].” Duran-Rodriguez, 918 F.3d at 1029 (citing

8 C.F.R. § 1208.16(c)(2)); see Delgado-Ortiz v. Holder,

600 F.3d 1148, 1152 (9th Cir. 2010) (holding that generalized

evidence of crime in Mexico was insufficient to establish

prima facie eligibility for CAT protection). Therefore, the

BIA did not abuse its discretion in concluding that Silva

failed to establish a prima facie case for CAT protection.

PETITIONS DENIED.

BERZON, Circuit Judge, concurring:

I concur in the majority opinion in full. I write separately

to reiterate yet again my view that the phrase “crime

involving moral turpitude” is unconstitutionally vague. See

Barbosa v. Barr, 926 F.3d 1053, 1060–61 (9th Cir. 2019)

(Berzon, J., concurring); Jauregui-Cardenas v. Barr,

946 F.3d 1116, 1121 (9th Cir. 2020) (Berzon, J., concurring).

The majority opinion provides yet another example of our

“failed enterprise” to consistently determine whether a crime

SILVA V. GARLAND 27

involves moral turpitude when there is no “coherent criteria”

as to what that phrase encompasses. Islas-Veloz v. Whitaker,

914 F.3d 1249, 1258–61 (9th Cir. 2019) (Fletcher, J.,

concurring). As “persistent efforts” have failed “to establish

a standard” of what a “crime involving moral turpitude” is, it

is time to revisit whether this phrase is unconstitutionally

vague. See Johnson v. United States, —U.S.—, 135 S. Ct.

2551, 2558 (2015) (internal citation and quotation marks

omitted).