Amilcar Francisco-Lopez v. Attorney General USA, 970 F.3d 431

Background

Petitioner Amilcar Francisco, a lawful permanent resident, pleaded guilty in 2012 to attempted second-degree grand larceny under N.Y. Penal Law § 155.40(2)(b) for obtaining a stolen laptop, demanding reimbursement, and sending explicit images; he received probation (completed 2017).
In 2018, upon returning to the U.S., Francisco was treated as an arriving alien and deemed inadmissible/removable under the INA as having been convicted of a crime involving moral turpitude (CIMT) based on the 2012 conviction.
The BIA applied its 2016 decision in Matter of Diaz-Lizarraga (which broadened the theft-related CIMT intent element) retroactively, concluded New York second-degree grand larceny met the expanded test, and affirmed removal and denial of cancellation of removal.
Francisco petitioned for review in the Third Circuit, challenging the BIA’s retroactive application of Diaz-Lizarraga and asserting due-process errors by the IJ in denying cancellation.
The Third Circuit applied the five-factor “manifest injustice”/retroactivity framework (Chenery/Laborers’ Int’l retail-wholesale test), found each factor favored Francisco, held the BIA erred in retroactively applying Diaz-Lizarraga, vacated the BIA’s order and remanded for reconsideration under the prior CIMT standard.
The court declined to review the discretionary denial of cancellation (due-process arguments were characterized as challenges to unreviewable discretion) and remanded the CIMT substantive question to the BIA rather than deciding it de novo.

Issues

Issue	Francisco's Argument	Government's Argument	Held
Retroactive application of Matter of Diaz-Lizarraga	BIA may not apply Diaz-Lizarraga to convictions that predate it; doing so is unfair and disrupts settled expectations	BIA may apply new interpretive rule in adjudication to achieve uniformity and reflect modern state statutes	Court: Retroactive application here would cause "manifest injustice" under the five-factor test; vacated BIA order and remanded for proceedings under prior rule
Whether N.Y. Penal Law § 155.40(2) is a categorical CIMT under the prior (permanent-deprivation) test	Francisco: Under the old BIA test (intent to permanently deprive), his conviction is not necessarily a CIMT	Government: The statute satisfies the CIMT intent element	Court: Declined to decide; remanded to BIA to analyze § 155.40(2) under the pre–Diaz-Lizarraga standard
Due process challenge to IJ's denial of cancellation of removal	Francisco: IJ mischaracterized facts, failed to weigh positive equities, violated due process	Government: Denial of discretionary relief is committed to agency discretion and largely unreviewable	Court: Lacks jurisdiction to review discretionary denial; petition on that ground dismissed for lack of jurisdiction
Jurisdiction to review BIA legal determinations	Francisco: Circuit may review questions of law and constitutional claims despite general bar on reviewing removal orders based on CIMTs	Government: Section 1252 limits review of final removal orders for CIMTs	Court: Has jurisdiction to decide legal questions and constitutional claims; exercised jurisdiction to decide retroactivity/legal issue

Key Cases Cited

Landgraf v. USI Film Prods., 511 U.S. 244 (addressing retroactivity and settled expectations)
SEC v. Chenery Corp., 332 U.S. 194 (agency adjudication retroactivity balancing)
Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375 (3d Cir. 1994) (adopting five-factor retroactivity/manifest injustice framework)
Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167 (3d Cir. 2002) (applied Laborers’ five-factor test)
Padilla v. Kentucky, 559 U.S. 356 (counsel must advise alien defendants of immigration consequences of pleas)
INS v. St. Cyr, 533 U.S. 289 (construing deportation ambiguities in favor of aliens; review of immigration-law clarity)
Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018) (rejecting retroactive Diaz-Lizarraga application)
Garcia-Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018) (holding Diaz-Lizarraga not retroactive)
Monteon-Camargo v. Barr, 918 F.3d 423 (5th Cir. 2019) (joining other circuits rejecting retroactivity)
Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017) (addressing Diaz-Lizarraga implications)