and Submitted April 12, 2018 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A077-310-010
Francis Jacobs (argued), Robert F. Jacobs & Associates,
Santa Fe Springs, California, for Petitioner.
Miles (argued), Trial Attorney; John W. Blakeley, Assistant
Director; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Before: Carlos T. Bea and Mary H. Murguia, Circuit Judges,
and Stanley Allen Bastian, [*] District Judge.
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.
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unpublished decision did not merit deference and adopted a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
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.
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
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 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.
MURGUIA, CIRCUIT JUDGE:
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. §
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.
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 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.
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
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),
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.
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. 8 U.S.C. § 1229b(b)(1)(C).
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.
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 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." 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.
timely appealed the BIA's decision.
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 conviction is in fact a CIMT as defined in
the Immigration and Nationality Act ("INA").
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.
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).
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 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 ...