965 F.3d 724
9th Cir.2020Background
- Joel Empleo Silva, a lawful permanent resident, was convicted of three petty-theft offenses under Cal. Pen. Code §484(a) (1998, 2004, 2007) and charged removable under 8 U.S.C. §1227(a)(2)(A)(ii) for having "two or more crimes involving moral turpitude."
- An IJ found Silva removable; the BIA dismissed his appeal relying on Ninth Circuit precedent that petty theft under §484(a) is a crime involving moral turpitude (CIMT) and declined to decide a vagueness challenge to the statutory phrase.
- While the petition for review was pending, Silva moved to reopen based on changed country conditions in the Philippines (Duterte’s Oplan Tokhang) and his past methamphetamine use, arguing he would face targeting or be unable to resist relapse if returned.
- The BIA denied the motion to reopen for failing to show that the new evidence would establish a prima facie case for asylum, withholding of removal, or protection under the Convention Against Torture (CAT).
- The Ninth Circuit consolidated Silva’s petitions, applied the categorical approach, and held the court was bound by circuit precedent classifying California petty theft as a CIMT; it also affirmed the BIA’s denial of reopening as not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument (Silva) | Defendant's Argument (BIA/Barr) | Held |
|---|---|---|---|
| Whether Cal. Penal Code §484(a) petty theft is a "crime involving moral turpitude" for removal under 8 U.S.C. §1227(a)(2)(A)(ii) | §484(a) does not require intent to permanently deprive and therefore criminalizes conduct beyond the BIA’s pre-2016 theft-CIMT definition; thus petty theft is not categorically a CIMT | Ninth Circuit precedent (Esparza-Ponce, Castillo-Cruz) treats petty theft under §484(a) as a CIMT; BIA reasonably relied on that precedent | Court held it was bound by circuit precedent and affirmed that Silva’s §484(a) convictions are CIMTs, making him removable |
| Whether the panel could depart from prior Ninth Circuit decisions given California Supreme Court decisions (Avery) and BIA shifts (Diaz-Lizarraga/Garcia‑Martinez) | Avery shows §484(a) allows non‑literal permanent takings, so earlier circuit cases may be wrong and should be revisited | A panel must follow binding circuit precedent; only en banc court or clearly irreconcilable intervening authority can alter it | Court held the panel was bound by prior Ninth Circuit precedent and could not overrule it, despite tension with state law and later BIA interpretation |
| Whether Silva’s motion to reopen established prima facie eligibility for asylum/withholding based on Duterte-era killings and risk tied to past drug use | Changed country conditions and his past drug use create a reasonable possibility/more-likely-than-not risk of persecution or punishment if returned | Evidence was speculative: no showing Filipino authorities knew his past use, and no specific evidence he would relapse or be targeted | BIA did not abuse discretion; Silva failed to establish a prima facie case for asylum or withholding (speculation insufficient) |
| Whether Silva established prima facie eligibility for CAT relief | Oplan Tokhang and reports of extrajudicial killings make torture more likely than not upon return | Evidence was generalized and speculative as to Silva personally; insufficient to meet "more likely than not" standard | BIA did not abuse discretion; Silva failed to show it was more likely than not he would be tortured |
Key Cases Cited
- Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009) (held petty theft under §484(a) is a crime involving moral turpitude)
- United States v. Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999) (applied categorical approach and treated California petty theft as CIMT)
- Garcia-Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018) (held BIA’s post‑Diaz‑Lizarraga theft test applies only prospectively)
- People v. Avery, 27 Cal.4th 49 (Cal. 2002) (California Supreme Court: §484(a) can cover extended temporary deprivations that substantially erode owner’s rights)
- Taylor v. United States, 495 U.S. 575 (1990) (established the categorical approach for comparing state offenses to generic federal offenses)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (discussed defining a generic theft offense for immigration purposes)