Jose Garcia-Martinez v. Jefferson Sessions
886 F.3d 1291
| 9th Cir. | 2018Background
- Petitioner Jose Maria Garcia-Martinez, a Mexican national and U.S. lawful permanent resident since 1990, was convicted (by guilty plea) of three Oregon theft offenses in 2007, 2012, and 2013 under Or. Rev. Stat. §§ 164.043, 164.045.
- DHS charged Garcia as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two or more crimes involving moral turpitude (CIMTs); an Immigration Judge and the BIA agreed he was removable.
- Oregon theft law criminalizes taking or exercising control over another’s property with intent to deprive or appropriate; the statute does not require a permanent taking and is declared nondivisible.
- Historically, the BIA and Ninth Circuit treated theft as a CIMT only when committed with intent to permanently deprive the owner; the BIA in 2016 adopted a new rule expanding CIMT to include intent to deprive permanently or where owner’s rights are substantially eroded.
- The central question in this appeal was whether the BIA’s new broader CIMT definition applies retroactively to Garcia’s convictions, or whether the long-standing literal-permanent-deprivation rule governs.
Issues
| Issue | Plaintiff's Argument (Garcia) | Defendant's Argument (Sessions/Govt.) | Held |
|---|---|---|---|
| Whether the BIA’s new CIMT rule (not limited to literal permanent deprivation) applies to Garcia’s convictions | Diaz-Lizarraga’s new rule should not apply retroactively; convictions judged under the preexisting permanent-deprivation rule | The BIA’s revised rule should apply to Garcia, making his Oregon thefts CIMTs | The new BIA rule is not retroactive here; apply the old permanent-deprivation test and Garcia’s thefts are not CIMTs |
| Whether Garcia’s Oregon theft convictions qualify as CIMTs under the controlling (pre-change) law | Under the long-standing rule, theft is a CIMT only if there is intent to permanently deprive; Garcia lacked such intent as a matter of law | Government contended his convictions met CIMT criteria under the new standard | Under the pre-change rule, Oregon’s theft statutes (which allow temporary takings) do not categorically constitute CIMTs; removal order vacated |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (deference to reasonable agency interpretations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency interpretations depends on persuasiveness)
- Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016) (treating theft as CIMT only when intent to permanently deprive exists)
- Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007) (factors for assessing retroactive application of agency rule changes)
- Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017) (presuming the BIA’s revised CIMT rule applies prospectively)
- INS v. St. Cyr, 533 U.S. 289 (2001) (presumption against retroactive application of immigration rules)