JOEL EMPLEO SILVA, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
Nos. 16-70130, 17-73272
United States Court of Appeals for the Ninth Circuit
July 10, 2020
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Ivan L.R. Lemelle, District Judge.
Agency No. A045-476-155. Opinion by Judge Ikuta; Concurrence by Judge Berzon.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JOEL EMPLEO SILVA, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
Nos. 16-70130, 17-73272
Agency No. A045-476-155
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 16, 2020*
San Francisco, California
Filed July 10, 2020
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Ivan L.R. Lemelle, District Judge.**
Opinion by Judge Ikuta; Concurrence by Judge Berzon
SUMMARY***
Immigration
Denying Joel Empleo Silva‘s petitions for review of decisions of the Board of Immigration Appeals, the panel concluded that Silva‘s conviction for petty theft under
Silva was convicted of violating
Addressing the elements of Silva‘s conviction, the panel observed that, in People v. Davis, 19 Cal. 4th 301 (1998), the California Supreme Court explained in dicta that
The panel explained that, if it were writing on a clean slate, the categorical analysis would proceed as follows. Silva was convicted of violating
However, the panel pointed out that it was not writing on a clean slate, and that both before and after Avery, this court held that
Turning to Silva‘s motion to reopen, the panel held that the BIA did not abuse its discretion in denying Silva‘s motion to reopen because he failed to establish prima facie eligibility for asylum and related relief based on changed country conditions. Silva sought to reopen proceedings based on his history of drug use and his fear of persecution or torture under Philippine President Rodrigo Duterte‘s anti-drug program. The panel noted that Silva did not contend that he suffered past persecution, and merely speculated that someone in the Philippines could report his past drug use to the government, or that he might succumb to the temptation to begin using drugs again. Because Silva failed to submit any specific evidence that such events might occur, the panel held that Silva failed to establish prima facie eligibility for relief.
Judge Berzon concurred in the majority opinion in full, but wrote separately to reiterate her view that the
COUNSEL
Joseph H. Hunt, Assistant Attorney General; Song Park and Papu Sandhu, Acting Assistant Directors; Christina P. Greer, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
IKUTA, Circuit Judge:
Under our precedent, petty theft under
I
Joel Empleo Silva was admitted to the United States as a lawful permanent resident on June 27, 1996. After admission, Silva was convicted of petty theft offenses under the California Penal Code on three separate occasions: in 1998, he was convicted of petty theft in violation of
In May 2015, the Department of Homeland Security charged Silva as removable for having been “convicted of two or more crimes involving moral turpitude,”
In December 2015, the BIA dismissed Silva‘s appeal. It rejected Silva‘s argument that a violation of
While the petition was pending, Silva moved to reopen proceedings in light of changed country conditions in the Philippines, for the purpose of applying for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In his motion, Silva made the following allegations. After Rodrigo Duterte was elected president of the Philippines, he instituted an anti-drug program that included an initiative called Oplan Tokhang—roughly translated as “knock and plead“—which focused on low-level sellers and users. Under Oplan Tokhang, police and local officials visited the houses of suspected drug sellers and users and demanded that they cooperate with the police. Suspects who did not cooperate, or who initially cooperated but then returned to using or selling, were reportedly killed.
Silva also alleged that his history of drug use would put him at risk if he returned to the Philippines. In a declaration submitted with his motion to reopen, Silva testified that he had regularly used methamphetamine while in the United States from the late 1990s until 2015 and that he had used a cheap form of the drug called “shabu” daily with friends and neighbors when he returned to the Philippines for three months in early 2000. After being taken into immigration custody in May 2015, Silva stopped using drugs and has continued to abstain from drug use after his release, even though he had “been tempted many times by [a] friend.” Despite abstaining from drugs, Silva claims that if he returns to the Philippines, the people who knew him when he was there in 2000 could “rat him out” to the police as a former drug user. Further, Silva believes that “it will be very hard for [him] to resist the temptation to start using shabu” in the Philippines.
The BIA denied Silva‘s motion to reopen. The BIA reasoned that Silva had not shown that Filipino authorities were aware or would become aware of his past drug use. Nor had Silva shown that he would use drugs in the Philippines. Therefore, the BIA held that Silva had not made out a prima facie case for asylum, withholding of removal, or CAT protection. Silva petitioned for review.
We consolidated Silva‘s two pending petitions for review. See
II
We first turn to Silva‘s petition for review of the BIA‘s December 2015 order of removal. On appeal, Silva argues that he is not removable for having been convicted “of two or more crimes involving moral turpitude,”
A
In making this determination, we begin by defining the elements of the generic federal offense, id., in this case, “crimes involving moral turpitude,”
Given the difficulty of determining the elements of “crimes involving moral turpitude” as opposed to determining the elements of a specific criminal offense, the BIA has adopted a different approach. Because the phrase “crimes involving moral turpitude” refers to a category of crimes rather than a specific offense with identifiable elements, cf.
Using this method of interpretation, the BIA had concluded that only certain theft offenses involve moral turpitude. For purposes of the statutory section providing that the term “aggravated felony” means, among other things, “a theft offense (including receipt of stolen property),”
Against this backdrop, the BIA reexamined the elements of a theft offense involving moral turpitude in Matter of Diaz-Lizarraga. In doing so, the BIA explained that its “purpose in adopting the ‘intent to permanently deprive’ requirement was to distinguish between substantial and reprehensible deprivations of an owner‘s property on the one hand and, on the other, mere de minimis takings in which the owner‘s property rights are compromised little, if at all.” Matter of Diaz-Lizarraga, 26 I. & N. Dec. at 850. Since its early decisions, the BIA observed, criminal law had evolved, and most jurisdictions had abandoned the “traditional dichotomy of permanent versus temporary takings.” Id. at 851. Accordingly, the BIA updated its jurisprudence to reflect the majority of states and the Model Penal Code, and held that “a theft offense is a crime involving moral turpitude if it involves an intent to deprive the owner of his property either permanently or under circumstances where the owner‘s property rights are substantially eroded.” Id. at 853. Under this definition, a theft offense may involve moral turpitude “despite the fact that it does not require the accused to intend a literally permanent taking.” Id. at 852 (emphasis omitted). Further, the BIA stated that “to the extent that any of our prior decisions have required a literal intent to permanently deprive in order for a theft offense to be a crime involving moral turpitude, those decisions are overruled.” Id. at 855.
We subsequently held that the BIA‘s decision to “abandon the literally-permanent deprivation test” constituted an abrupt change in law that would impose “a new and severe burden” if applied to persons who were convicted while the “old rule was extant.” Garcia-Martinez v. Sessions, 886 F.3d 1291, 1295-96 (9th Cir. 2018). Accordingly, we held that the BIA‘s new rule would not apply to persons who were convicted before November 16, 2016, the date on which the BIA issued its decision in Matter of Diaz-Lizarraga. Id. at 1296. In short, under Garcia-Martinez, the
B
Having identified the BIA‘s interpretation of a generic theft offense involving moral turpitude, we turn to the second step of the categorical approach, identifying the elements of the specific crime of conviction. See Renteria-Morales, 551 F.3d at 1081. To determine the elements of a state statute, “we may consider the interpretation of the statute provided by state courts.” United States v. Perez, 932 F.3d 782, 785 (9th Cir. 2019).
The California Supreme Court subsequently cast doubt on this statement of law. See Davis, 19 Cal. 4th at 318. In Davis, the California Supreme Court explained in dicta that
Finally, the California Supreme Court resolved the disagreement between Marquez and Zangari, and adopted the dicta in Davis. See People v. Avery, 27 Cal. 4th 49, 55 (2002). Avery held that for purposes of
C
Under the categorical approach, the next step is to determine “whether the elements of the alien‘s state statute of conviction criminalize more conduct than, or the same conduct as, the elements of a generic federal offense.” Diego v. Sessions, 857 F.3d 1005, 1009 (9th Cir. 2017). If the elements of the specific crime of conviction criminalize the same or less conduct than the generic offense, the specific crime of conviction categorically qualifies as a crime involving moral turpitude. See id.
If we were writing on a clean slate, the third step would proceed as follows. Silva was convicted of violating
D
We are not, however, writing on a clean slate. Before Avery was decided, we held that a conviction under
Garcia-Martinez puts our conclusions in Esparza-Ponce, Flores Juarez, and Castillo-Cruz in question, because these opinions failed to analyze the potential distinction between the intent requirement in
Because Avery predates Castillo-Cruz and Flores Juarez, there is no “intervening decision on controlling state law by a state court of last resort,” Gammie, 335 F.3d at 893, and we are “bound to reach the same result” as our precedent, Massanari, 266 F.3d at 1170. We therefore conclude that Silva‘s three separate violations of
III
We next turn to the BIA‘s denial of Silva‘s motion to reopen. Although Silva did not seek relief from removal at his initial hearing, an alien may move to reopen proceedings for the purpose of submitting new applications for relief. See
Where, as here, the motion to reopen is based on changed circumstances in the country to which removal has been ordered, the movant must: (1) produce evidence that conditions have changed in the country of removal, (2) demonstrate that the evidence is material, (3) show that the evidence was not available and would not have been discovered or presented at the previous hearing, and (4) demonstrate that the new evidence, when considered together with the evidence presented at the original hearing, would establish prima facie eligibility for the relief sought. See
Here, the BIA denied the motion to reopen on the ground that Silva had not established the fourth prong: that the new evidence would establish a prima facie case for the relief sought. Therefore, our review is limited to that ground. See Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000). To establish a prima facie case, the movant must adduce evidence that, along with the facts already in the record, “will support the desired finding if evidence to the contrary is disregarded.” Maroufi v. INS, 772 F.2d 597, 599 (9th Cir. 1985); see also Sakhavat v. INS, 796 F.2d 1201, 1204 (9th Cir. 1986) (stating that, at the motion-to-reopen stage, the BIA must determine whether the movant‘s affidavits “on their face cumulatively establish a clear probability” that he is entitled to the relief sought). The BIA may not make credibility determinations on motions to reopen, Yang v. Lynch, 822 F.3d 504, 509 (9th Cir. 2016), and “must accept as true the facts asserted by the [movant], unless they are ‘inherently unbelievable,‘” Agonafer, 859 F.3d at 1203 (quoting Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)).10 Nevertheless, “[c]ourts have recognized that a prima facie case of the clear probability of persecution cannot be established from speculative conclusions or vague assertions.” Maroufi, 772 F.2d at 599; see also Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (holding that an alien‘s fear of a hostile political party regaining power in her country is “too speculative to be credited as a basis for fear of future persecution” absent “specific evidence” suggesting that such an event will occur). Therefore, “[a]ffidavits submitted in support of motions to reopen deportation proceedings must contain specific facts in order to carry the burden of establishing a clear probability of persecution.” Maroufi, 772 F.2d at 600.
We turn to the question whether Silva established a prima facie case for asylum or withholding of removal. Silva does not contend that he suffered past persecution in the Philippines, so to qualify for asylum he must demonstrate “a well-founded fear of future persecution” in
Here, the BIA did not abuse its discretion in concluding that Silva failed to establish a prima facie case for asylum or withholding of removal. In his declaration, Silva speculated that someone in the Philippines could report his past drug use to the government, or that he might succumb to the temptation to begin using drugs again. Silva did not, however, submit any “specific evidence” that such events might occur, and these possibilities are “too speculative to be credited as a basis for fear of future persecution.” Nagoulko, 333 F.3d at 1018. Accordingly, the BIA did not abuse its discretion in concluding that Silva failed to establish a prima facie case for asylum. Therefore, he also “necessarily fail[ed] to satisfy the more stringent standard for withholding of removal.” Mansour, 390 F.3d at 673.
We next turn to the question whether Silva established a prima facie case for protection under the Convention Against Torture (CAT). To qualify for CAT protection, the applicant must “establish that it is more likely than not that he or she would be tortured if removed to [the country in question].”
It was neither arbitrary nor irrational for the BIA to conclude that Silva‘s speculations in his motion to reopen and declaration were insufficient to show “that it is more likely than not that he would be tortured if removed to [the Philippines].” Duran-Rodriguez, 918 F.3d at 1029 (citing
PETITIONS DENIED.
BERZON, Circuit Judge, concurring:
I concur in the majority opinion in full. I write separately to reiterate yet again my view that the phrase “crime involving moral