Jose Garcia-Martinez v. Loretta Lynch

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, M. MARGARET MCKEOWN and JULIO M. FUENTES) Petition GRANTED, and matter REMANDED to the BIA for proceedings consistent with this opinion. Judge: FFF Authoring. FILED AND ENTERED JUDGMENT. [10828374]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE MARIA GARCIA-MARTINEZ,
Petitioner,
v.

No. 16-72940
Agency No.
A091-071-827

JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 15, 2018
San Francisco, California
Filed April 9, 2018
Before: Ferdinand F. Fernandez, M. Margaret McKeown,
and Julio M. Fuentes,* Circuit Judges.
Opinion by Judge Fernandez

*

The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.

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GARCIA-MARTINEZ V. SESSIONS
SUMMARY**

Immigration
The panel granted Jose Maria Garcia-Martinez’s petition
for review of a decision of the Board of Immigration Appeals,
holding that the BIA erred in concluding that Garcia’s
Oregon theft convictions were crimes involving moral
turpitude, and remanded.
Garcia was a lawful permanent resident at the time of his
convictions, and the BIA found him removable, under
8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of
two or more crimes involving moral turpitude, not arising out
of a single scheme of criminal misconduct.
The panel noted that the Oregon theft offenses for which
Garcia was convicted did not require a permanent taking of
property. Therefore, the panel concluded that, at the time
Garcia committed the offenses, they were not crimes
involving moral turpitude because for many decades the BIA
had required a permanent intent to deprive in order for a theft
offense to be a crime involving moral turpitude.
The panel observed that in In re Diaz-Lizarraga, 26 I. &
N. Dec. 847 (BIA 2016), the BIA changed the law by no
longer requiring a permanent intent to deprive in this context.
However, the panel rejected the government’s argument that
this new rule should be applied retroactively to Garcia,
concluding that the balance of retroactivity factors weighed
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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heavily in his favor: 1) this was not a case of first impression;
2) the decision to abandon the literally-permanent deprivation
test was a rather abrupt change in the law; 3) an alien in
Garcia’s position would rely on the BIA’s prior rule; and 4)
the new rule would impose a new and severe burden upon
Garcia, who would be removed from this country and his
family after living here for over thirty years. Accordingly,
the panel concluded that Garcia’s removal order must be set
aside.

COUNSEL
Lochlan F. Shelfer (argued) and Jeremy M. Christiansen,
Gibson Dunn & Crutcher LLP, Washington, D.C., for
Petitioner.
Imran R. Zaidi (argued), Trial Attorney; Julie M. Iversen,
Senior Litigation Counsel; Stephen J. Flynn, Assistant
Director; Chad A. Readler, Acting Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
Jennifer Lee Koh, Immigration Clinic, Western State College
of Law, Irvine, California; Kari Hong, Ninth Circuit
Appellate Program, Boston College Law School, Newton,
Massachusetts; for Amici Curiae Immigration Law Professors
and Clinicians.

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OPINION

FERNANDEZ, Circuit Judge:
Jose Maria Garcia-Martinez, a native and citizen of
Mexico and a lawful permanent resident of the United States,
petitions for review of the Board of Immigration Appeals’
(BIA) determination that he was removable because he had
been convicted of two (actually three) crimes involving moral
turpitude (hereafter “CIMT”).
See 8 U.S.C.
§ 1227(a)(2)(A)(ii). Those were crimes of theft committed in
the State of Oregon. See Or. Rev. Stat. § 164.015; see also
Or. Rev. Stat. § 164.005(1)(a), (2)(a). We grant the petition.
BACKGROUND
Garcia became a lawful permanent resident of the United
States on December 1, 1990. Thereafter, he incurred three
convictions that are relevant to this petition for review: a
conviction on March 8, 2007, for second degree theft in
violation of Oregon Revised Statutes section 164.045; a
conviction on December 31, 2012, for third degree theft in
violation of Oregon Revised Statutes section 164.043; and a
conviction on March 7, 2013, for third degree theft in
violation of Oregon Revised Statutes section 164.043. All
three convictions were based upon guilty pleas.
The Department of Homeland Security (DHS) ultimately
alleged that those were CIMTs. As a result, he was
removable because he had been convicted of “two or more
crimes involving moral turpitude, not arising out of a single
scheme of criminal misconduct.”
8 U.S.C.
§ 1227(a)(2)(A)(ii). On March 15, 2016, in a written
decision, the Immigration Judge (IJ) agreed that on the basis

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of those convictions, Garcia was removable. See id. The IJ
also denied Garcia’s application for cancellation of removal.
See 8 U.S.C. § 1229b(a).1 On August 18, 2016, the BIA also
agreed that Garcia’s crimes were CIMTs. This petition
followed.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252.
Where, as here, the BIA agrees with the IJ’s reasoning,
we review both decisions. See Kumar v. Holder, 728 F.3d
993, 998 (9th Cir. 2013); see also Ai Jun Zhi v. Holder,
751 F.3d 1088, 1091 (9th Cir. 2014). Whether a crime is a
CIMT is a question of law. See Uppal v. Holder, 605 F.3d
712, 714 (9th Cir. 2010). We review “de novo the BIA’s
determination of purely legal questions, including the BIA’s
interpretation of the Immigration and Nationality Act.”
Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir. 1999). However,
we do so with appropriate deference. See, e.g., Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
843–44, 104 S. Ct. 2778, 2781–82, 81 L. Ed. 2d 694 (1984);
Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161,
164, 89 L. Ed. 124 (1944); see also Castrijon-Garcia v.
Holder, 704 F.3d 1205, 1208 (9th Cir. 2013); Edu v. Holder,
624 F.3d 1137, 1142–43 (9th Cir. 2010).

1

In Garcia’s petition to this court, he does not argue that the BIA
erred in determining that he is not entitled to cancellation of removal.
Thus, the issue is not before us.

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DISCUSSION

In order to decide if a conviction was for a CIMT we must
determine the elements of the crime under the law of the state
where a person was convicted. Here, of course, that is the
law of the State of Oregon regarding theft. Then, we must
see if that meets the definition of a CIMT for purposes of
8 U.S.C. § 1227(a)(2)(A)(ii).
In the State of Oregon, a person is guilty of theft “when,
with intent to deprive another of property or to appropriate
property to the person . . . , the person: (1) [t]akes,
appropriates, obtains or withholds such property from an
owner thereof.” Or. Rev. Stat. § 164.015. “‘Appropriate’ . . .
means to: . . . Exercise control over property of another, . . .
permanently or for so extended a period or under such
circumstances as to acquire the major portion of the economic
value or benefit of such property . . . .” Id. § 164.005(1)(a).
Similarly: “‘Deprive’ . . . means to: . . . Withhold property of
another or cause property of another to be withheld from that
person permanently or for so extended a period or under such
circumstances that the major portion of its economic value or
benefit is lost to that person . . . .” Id. § 164.005(2)(a).
Notably, the statutory scheme does not require a permanent
taking of the property in question; something less than that
will do. In fact, it can be quite a bit less; it can be a mere
temporary taking. See State v. Christine, 93 P.3d 82, 84, 87
(Or. Ct. App. 2004) (where a van and cell phone were taken
for a relatively short time and then abandoned when the
thieves changed vehicles, that was enough to constitute theft);
see also State v. Browning, 386 P.3d 192, 193 (Or. Ct. App.
2016) (holding that “the term ‘take’ applies to the exercise of
dominion or control over property for one’s own use . . . ,
regardless of whether the dominion or control is intended to

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be temporary or permanent”). The Oregon statutory
provisions in question are “indivisible.” See Or. Rev. Stat.
§ 164.025; State v. Cox, 82 P.3d 619, 623–24 (Or. 2003).
Because resolution of this case turns on whether Garcia
committed CIMTs, we must determine if Garcia’s thefts in
Oregon were CIMTs. At the time he committed them, they
were not CIMTs because for many decades (at least since
19472) the BIA had held that “a theft offense categorically
involves moral turpitude if—and only if—it is committed
with the intent to permanently deprive an owner of
property.”3 We agreed. See Almanza-Arenas v. Lynch,
815 F.3d 469, 476 (9th Cir. 2016) (en banc). At argument,
the government also agreed with that assessment, and
properly so. In fact, the BIA recently said that was the rule.
See Diaz-Lizarraga, 26 I. & N. Dec. at 849. But it went on to
say more. It declared that “a theft offense is a crime
involving moral turpitude if it involves an intent to deprive
the owner of his property either permanently or under
circumstances where the owner’s property rights are
substantially eroded.” Id. at 853. It frankly admitted that it
was changing the law, but stated “we conclude that our early
jurisprudence does not provide us with good reasons to
persist in the rule that moral turpitude requires a taking
involving a literally permanent intended deprivation.” Id.
And, finally, “to the extent that any of our prior decisions
have required a literal intent to permanently deprive in order
for a theft offense to be a crime involving moral turpitude,

2

In re R–, 2 I. & N. Dec. 819, 828 (B.I.A. 1947); see also In re P–,
2 I. & N. Dec. 887, 887 (B.I.A. 1947); In re H–, 2 I. & N. Dec. 864, 865
(B.I.A. 1947); In re T–, 2 I. & N. Dec. 22, 42 (Op. Att’y Gen. 1944).
3

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

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those decisions are overruled.” Id. at 855. Simply put, the
BIA changed the law.
The government, instead, argues that under the new rule
Garcia’s Oregon crimes are CIMTs because the new rule
should be applied retroactively to this case. If the new rule
does not apply retroactively, the BIA’s decision in this case
was in error.4
We recognize that the BIA can change its rules
retroactively through adjudication,5 but that authority is not
unconstrained. Rather, we must balance the reliance interests
of those to whom the new rule will be applied against the
mischief, if any, that would be caused if the rule is not so
applied. In doing so, we balance a number of “nonexhaustive” factors, that is:
(1) whether the particular case is one of first
impression,
(2) whether the new rule represents an abrupt
departure from well established practice or
merely attempts to fill a void in an unsettled
area of law,

4
In fact, in this case a one-judge panel of the BIA did apply what
amounts to the new rule. That judge ultimately authored Diaz-Lizarraga,
but here he jumped the gun a bit.
5

See SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S. Ct. 1575,
1580–81, 91 L. Ed. 1995 (1947).

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(3) the extent to which the party against whom
the new rule is applied relied on the former
rule,
(4) the degree of the burden which a
retroactive order imposes on a party, and
(5) the statutory interest in applying a new
rule despite the reliance of a party on the old
standard.
Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir.
2007). When we do so, that balance weighs heavily in
Garcia’s favor.
First, to the extent that the consideration is relevant in the
immigration context,6 this surely was not a case of first
impression.7 Seventy years of application of the old rule tells
us that. See Diaz-Lizarraga, 26 I. & N. Dec. at 849.
Second, on its face, the decision to abandon the literallypermanent deprivation test was a rather abrupt change in the
law, to say the least. While there may have been some slight
deviation from time to time when the BIA indulged in
presumptions about intent in considering the law of a

6

See Carrillo de Palacios v. Holder, 708 F.3d 1066, 1072 (9th Cir.
2013); Garfias-Rodriguez v. Holder, 702 F.3d 504, 521–23 (9th Cir. 2012)
(en banc).
7

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

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particular state,8 that does not square well with Oregon law
which declares itself to be nondivisible in the theft area. See
Or. Rev. Stat. § 164.025; see also Almanza-Arenas, 815 F.3d
at 475. More than that, the BIA did not overturn the
requirement that a taking must be literally permanent until
Diaz-Lizarraga itself. The law was not truly unsettled. See
Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322, 1333
(9th Cir. 1982).
Third, if there were some arcane nuances lurking in some
of the BIA’s authorities, we do not doubt than an alien in
Garcia’s position would rely on the BIA’s continual
affirmation of the rule of literal deprivation which had existed
for decades. Indeed we will presume9 that he was aware of
the then existing rule when he pled guilty to the theft crimes
in Oregon.
Fourth, there can be little doubt that the change in the
rule—the new rule—will impose a new and severe burden10
upon Garcia, who will be removed from this country and
from the proximity of his family after living in this country
for over thirty years.
Fifth, we do not vilipend the BIA’s interest in treating all
aliens uniformly or look upon its interest in removing
8

See In re Jurado-Delgado, 24 I. & N. Dec. 29, 33–34 (B.I.A. 2006)
(law of Pennsylvania); cf. In re Grazley, 14 I. & N. Dec. 330, 333 (B.I.A.
1973) (law of Canada).
9

See Miguel-Miguel, 500 F.3d at 952; see also INS v. St. Cyr,
533 U.S. 289, 322–23, 121 S. Ct. 2271, 2291, 150 L. Ed. 2d 347 (2001).
10

See Montgomery Ward, 691 F.2d at 1334; see also GarfiasRodriguez, 702 F.3d at 523.

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criminals from our midst with insouciance. However, we do
not think those have a great deal of weight in a case like this
one where the BIA lived with the preexisting rule for seven
decades and, in fact, until just a couple of years ago would
have treated Garcia as a person who had not committed
CIMTs.
Thus, on balance, the above factors and basic fairness
indicate that the changed rule should not be applied in this
situation. Rather, for this case, the law should remain as it
has been for many decades. In short, Garcia’s thefts were not
CIMTs, and his removal order must be set aside. Were we at
all doubtful about our conclusion, we would take comfort
from and be made more confident by a recent decision of the
Second Circuit Court of Appeals which, after weighing the
same factors, determined that the BIA’s new CIMT rule did
not apply retroactively. See Obeya v. Sessions, __ F.3d __,
__, No. 16-3922-ag, 2018 WL 1189417, at *2–5 (2d Cir. Mar.
8, 2018); see also Lucio-Rayos v. Sessions, 875 F.3d 573, 578
(10th Cir. 2017) (stating that the new rule “is presumed to
apply prospectively only”).
Therefore, we will grant the petition and remand.11

11

Because the new definition of CIMT does not apply to Garcia, we
need not, and do not, decide the constitutional questions raised by the
parties. See City of Los Angeles v. County of Kern, 581 F.3d 841, 846 (9th
Cir. 2009). That is, we do not decide whether the whole CIMT provision
must be stricken because it is void for vagueness. See Johnson v. United
States, __ U.S. __, __, 135 S. Ct. 2551, 2560, 192 L. Ed. 2d 569 (2015).
Nor do we decide the claim that Congress violated the separation of
powers principle when it conferred on the Attorney General the authority
to flesh out the meaning of CIMT. See Mistretta v. United States,
488 U.S. 361, 371–72, 109 S. Ct. 647, 654–55, 102 L. Ed. 2d 714 (1989).

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CONCLUSION

Perhaps the BIA slumbered for many decades while other
authorities were wisely updating the law so that theft offenses
would net individuals other than those who intended to
literally permanently deprive others of their property,
although some of the BIA’s umbrageous statements along the
way showed that it stirred while it slept. In any event, the
BIA has changed or updated or revised its rule for the future.
Nevertheless, that rule should not be applied to Garcia, who
pled and was convicted while the old rule was extant.
Petition GRANTED, and matter REMANDED to the BIA
for proceedings consistent with this opinion.