Manuel Olivas-Motta v. Matthew Whitaker
910 F.3d 1271
| 9th Cir. | 2018Background
- Manuel Jesus Olivas-Motta, a lawful permanent resident, pleaded guilty in 2007 to felony reckless endangerment (Ariz. Rev. Stat. § 13-1201) and previously had a 2003 conviction for facilitation to possess marijuana for sale.
- DHS charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien convicted of two crimes involving moral turpitude (CIMTs); the marijuana facilitation conviction was undisputedly a CIMT.
- The IJ and the Board initially found the Arizona felony endangerment conviction not categorically a CIMT, but the IJ relied on extra-record materials (police reports) to hold it was a CIMT; the Board affirmed on the same basis.
- While Olivas-Motta’s first petition for review was pending, the BIA issued a precedential decision (In re Leal) holding that Arizona felony endangerment is categorically a CIMT; this court later upheld that decision in Leal v. Holder.
- This court remanded the first petition because the IJ/Board relied on extra-record evidence (and are generally confined to the record of conviction); on remand the Board applied Leal and dismissed Olivas-Motta’s appeal.
- Olivas-Motta challenged the Board’s application of Leal as (1) impermissibly retroactive, (2) barred by claim/issue preclusion and the rule of mandate, and (3) that § 1227(a)(2)(A)(ii) is unconstitutionally vague.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying Leal I to Olivas‑Motta’s 2007 plea is impermissibly retroactive | Leal I and related changes (e.g., Silva‑Trevino) created a new rule after plea; Montgomery Ward retroactivity test should bar retroactive application | No change in law occurred; Leal I merely resolved prior uncertainty and did not alter preexisting law | Denied: Montgomery Ward analysis applies only when law changed; here BIA had no prior precedential rule on §13‑1201, so Leal I clarified rather than changed law |
| Whether Silva‑Trevino abolished the aggravating‑factor requirement for recklessness CIMTs and thus changed the law | Silva‑Trevino eliminated the need for aggravating factors for recklessness offenses, producing the change that made §13‑1201 a CIMT | Silva‑Trevino harmonizes with earlier cases; aggravating‑factor analysis was tied to underlying conduct and Silva‑Trevino did not effect the asserted change as to Arizona endangerment | Denied: Silva‑Trevino did not effect the sweeping change claimed; Leal I resolved prior ambiguity but did not alter governing law for retroactivity purposes |
| Whether claim or issue preclusion or the rule of mandate prevented the Board from reconsidering categorical‑CIMT question on remand | Preclusion and the mandate bar the Board from re‑litigating categorical CIMT issue after court remand | The Board’s consideration occurred within the same continuing proceeding; preclusion requires a separate final action; the mandate did not restrict the Board from applying Leal I | Denied: preclusion inapplicable because remand was within same proceeding; rule of mandate did not prohibit Board from addressing issues not expressly disposed of on appeal |
| Whether 8 U.S.C. § 1227(a)(2)(A)(ii) is unconstitutionally vague | The term "crime involving moral turpitude" is too vague given Board expansions | Supreme Court and Ninth Circuit precedent reject vagueness challenge; established standards provide sufficient notice | Denied: prior circuit and Supreme Court decisions control; the panel lacks authority to revisit those precedents |
Key Cases Cited
- Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014) (Ninth Circuit upheld BIA ruling that Arizona felony endangerment is categorically a CIMT)
- Garfias‑Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (retroactivity principles for agency adjudications; when Montgomery Ward applies)
- Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982) (five‑factor test for evaluating retroactive application of agency rules)
- Vartelas v. Holder, 566 U.S. 257 (2012) (retroactivity framework; change of law requisite for retroactive application that impairs settled expectations)
- St. Cyr v. INS, 533 U.S. 289 (2001) (immigration consequences of guilty pleas and retroactivity concerns)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (panel bound by circuit precedent; only en banc court can overrule)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (void‑for‑vagueness doctrine applies to immigration removal statutes)