Felipe Betansos v. William Barr, 928 F.3d 1133

Background

Felipe Cruz Betansos, a Mexican national, sought cancellation of removal but had prior convictions including petty theft (Cal. Penal Code § 484(a)) and indecent exposure (Cal. Penal Code § 314(1)).
Cancellation of removal is unavailable to aliens convicted of two crimes involving moral turpitude (CIMTs); Betansos did not dispute petty theft was a CIMT.
The IJ concluded Betansos’s § 314(1) indecent-exposure conviction is categorically a CIMT and denied cancellation; the BIA affirmed relying on its precedential decision in Matter of Cortes Medina.
That BIA decision contradicted this Circuit’s earlier published decision in Nunez v. Holder (2010), which held § 314(1) is not categorically a CIMT because California law permits convictions for non-turpitudinous conduct.
The Ninth Circuit was asked to decide (1) whether to defer to the BIA’s Cortes Medina interpretation under Brand X/Chevron and (2) whether Cortes Medina applies retroactively to Betansos.
The court deferred to Cortes Medina as a reasonable agency interpretation and applied it retroactively under the Montgomery Ward factors, denying Betansos’s petition.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a conviction under Cal. Penal Code § 314(1) is categorically a CIMT	Betansos (relying on Nunez) argued § 314(1) is not categorically a CIMT because California prosecutions can cover non-turpitudinous conduct (e.g., nude dancing, sexual affront cases).	Government argued the BIA’s Cortes Medina correctly interprets moral turpitude to include lewd intent, making § 314(1) a categorical CIMT.	Court deferred to the BIA’s Cortes Medina under Brand X/Chevron and held § 314(1) is categorically a CIMT.
Whether the court must defer to the BIA despite prior Ninth Circuit precedent (Brand X issue)	Betansos argued Nunez controls and the BIA’s contrary conclusion is not entitled to Chevron deference.	Government argued Cortes Medina is a reasoned BIA interpretation entitled to Chevron deference and Brand X requires deferring to it.	Court concluded Cortes Medina is a reasoned, reasonable agency construction and Brand X requires deferring to it.
Whether Cortes Medina should be applied retroactively to Betansos	Betansos argued it would be unfair to retroactively apply a new interpretation that contradicts the settled Ninth Circuit rule in Nunez.	Government argued uniformity in immigration law favors applying the BIA’s reasonable construction; Brand X supports giving effect to the agency’s interpretation.	Applying the Montgomery Ward five-factor test, the court held Cortes Medina applies retroactively to Betansos.
Resulting effect on relief eligibility	Betansos argued he remained eligible for cancellation under Nunez.	Government argued two CIMT convictions render him statutorily ineligible.	Because § 314(1) is a CIMT and he had a separate petty-theft CIMT, Betansos was ineligible for cancellation; petition denied.

Key Cases Cited

Brand X Internet Servs. v. FCC, 545 U.S. 967 (agency interpretations entitled to Chevron deference even if they contradict prior circuit precedent)
Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (held Cal. Penal Code § 314(1) not categorically a CIMT)
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (principles governing deference to BIA CIMT determinations)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (Supreme Court standard requiring a "realistic probability" that a state would apply its statute to non-generic conduct)
Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (framework for retroactivity analysis when deferring to agency under Brand X)
Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982) (five-factor test for retroactivity analysis)