JORGE ANDRES REYES AFANADOR, AKA Jorge Alberto Reyes, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 17-70127
United States Court of Appeals, Ninth Circuit
Filed August 27, 2021
Agency No. A088-881-375
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted December 11, 2020 San Francisco, California
Before: William A. Fletcher, Sandra S. Ikuta, and Lawrence VanDyke, Circuit Judges.
Opinion by Judge Ikuta; Dissent by Judge VanDyke
Immigration
Granting Jose Andres Reyes Afanador’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held the BIA erred in applying Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013), retroactively to classify Reyes’s 2011 conviction for indecent exposure under
After becoming a lawful permanent resident, Reyes was convicted in 2011 and 2014 for violations of
The panel explained that, before 2010, the BIA held in nonprecedential decisions that
The panel concluded that applying Cortes Medina to Reyes would have a retroactive effect, explaining that Cortes Medina changed the legal consequences of Reyes’s 2011 conviction in two ways. First, Reyes became removable under
Applying the Montgomery Ward factors, the panel concluded that the retroactive effect here was impermissible. The panel observed that the first factor (whether the case is one of first impression) does not apply in immigration cases. As to the second factor (whether the new rule represents an abrupt departure from well established practice) the panel explained that Betansos had already decided that Cortes Medina abruptly departed from Nunez, and thus concluded that factor favored Reyes. The panel also concluded that the
Accordingly, the panel concluded that Reyes’s 2011 conviction could not be deemed a crime involving moral turpitude and therefore he was not removable under
Dissenting, Judge VanDyke wrote that the court was presented yet again with a case study in how this court’s abysmal and indefensible immigration precedents are the gifts that keep on taking. Judge VanDyke wrote that his colleagues in the majority felt cabined by a chain of errors from the past, initiated when Judge Reinhardt pronounced in Nunez that lewdly . . . [e]xpos[ing] . . . private parts . . . in any public place is neither base, vile, and depraved, nor does it shock the conscience. Nunez, 594 F.3d at 1130, 1138 (citation omitted). Judge VanDyke wrote that, after the BIA rushed to correct this court’s grossly wrong precedent, the Betansos decision somehow concluded that Cortes Medina
Judge VanDyke concluded that the statement in Betansos—that it would have been reasonable to rely on Nunez between its issuance and that of Cortes Medina—was dictum, and was obviously wrong because Cortes Medina was not a complete surprise. Observing that Cortes Medina was obviously an abrupt departure from Nunez, Judge VanDyke wrote that that is not the test under Montgomery Ward’s second factor; rather, that factor asks whether the BIA departed from well established practice. But even assuming the entire Betansos analysis is binding, Judge VanDyke concluded the petitioner in this case could not have justifiably relied on Nunez when it mattered—when he committed his second offense triggering his removal. Thus, the second and third Montgomery Ward factors weighed against Reyes, and he would deny the petition.
COUNSEL
Saad Ahmad (argued), Fremont, California; Raul Ray, Law Offices of Raul Ray, San Jose, California; for Petitioner.
Jonathan K. Ross (argued), Trial Attorney; Erica B. Miles, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
IKUTA, Circuit Judge:
Jorge Andres Reyes Afanador, a native of Colombia, petitions for review of a ruling by the Board of Immigration Appeals (BIA) that he was removable as an alien convicted of two crimes involving moral turpitude under
I
Reyes is a native of Colombia who entered the United States on a visitor’s visa in 1989. Before adjusting his status to lawful permanent resident, Reyes had numerous criminal arrests and convictions, including two indecent exposure convictions, one in 2007 under
In 2011, Reyes was again charged with indecent exposure under
At his July 2016 hearing before the immigration judge (IJ), Reyes admitted the factual allegations in the NTA, but challenged his removability on the ground that his convictions under
On appeal to the BIA, Reyes argued that the IJ erred by ignoring a Ninth Circuit decision holding that an offense under
II
Reyes argues that Cortes Medina cannot be applied retroactively to his 2011 conviction, and therefore the BIA erred in treating that conviction as a crime involving moral turpitude. If Reyes is correct, then only his 2014 conviction is a crime involving moral turpitude; this means that Reyes was not removable under
We begin with the background principles for applying new legal requirements retroactively. It has long been established that legislation does not apply retroactively absent a clear indication that Congress intended to make the statute retroactive. Reynolds v. McArthur, 27 U.S. 417, 434 (1829). This general rule is based on deeply rooted principles of
It is not always clear whether new legislation has a retroactive effect, however, and the Supreme Court has acknowledged that [a]ny test of retroactivity will leave room for disagreement in hard cases.4 Id. at 270. As a general rule, legislation is deemed retroactive (and therefore impermissible unless expressly sanctioned by Congress) if it changes the legal consequences of acts completed before its effective date, or if it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability. Id. at 269 n.23 (cleaned up). In determining whether a statute attaches new legal consequences to events completed before its enactment, courts should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations. INS v. St. Cyr, 533 U.S. 289, 321 (2001) (cleaned up).
By contrast to legislation, judicial decisions have been governed by a fundamental rule of retrospective operation for near a thousand years. Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 94 (1993) (cleaned up). Courts must apply judicial decisions announcing new interpretations of criminal procedural rules retroactively to all cases, state or federal, pending on direct review or not yet final. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Federal courts must also retroactively apply new rules announced in civil cases, except in narrow circumstances. Harper, 509 U.S. at 97–98.
Agency determinations may be legislative or judicial, because agencies engage in both rulemaking and adjudication. Agency determinations are judicial in nature when an agency’s adjudicatory decisions apply preexisting
An agency’s determinations may also be legislative in nature if Congress has delegated legislative authority to the agency. An agency may exercise its legislative authority in two different ways: it may proceed either through formal notice-and-comment rulemaking, or it may proceed through agency adjudication. Chenery II, 332 U.S. at 202; see also Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982) (It is well settled that the decision whether to proceed by adjudication or rule-making lies in the first instance within the [agency’s] discretion. (cleaned up)).
When an agency engages in formal rulemaking, the rules it promulgates are analogous to legislation and are construed to apply only prospectively (unless Congress has expressly authorized it to promulgate a retroactively applicable rule). See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988); De Niz Robles, 803 F.3d at 1172 ([A]bsent express congressional approval, newly promulgated agency rules should apply only prospectively because of their affinity to legislation.) (citing Bowen, 488 U.S. at 208).
An agency may also exercise its congressionally delegated legislative authority through adjudicatory proceedings, where new administrative policy [is] announced and implemented through adjudication.
Among the considerations that enter into a resolution of the problem are (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.
Id. (quoting Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972)).7
The first factor (whether a case is one of first impression) does not apply in the immigration context. See Garfias-Rodriguez, 702 F.3d at 520–21. In that context, the government is the plaintiff and there is no concern that a party seeking to overturn an administrative rule would not get the benefit of its efforts. De Niz Robles, 803 F.3d at 1177 n.9.
The second factor considers whether the adjudicatory rule represents an abrupt departure from well established practice, Garfias-Rodriguez, 702 F.3d at 518 (quoting Montgomery Ward, 691 F.2d at 1333), or is an abrupt break with well-settled policy, id. (quoting ARA Servs., Inc. v. NLRB, 71 F.3d 129, 135 (4th Cir. 1995)).
Next, the third factor (a party’s reliance interests) directs our attention to the question whether the petitioner can claim reasonable reliance on some past rule or decision, a due process concern always at the heart of retroactivity analysis. De Niz Robles, 803 F.3d at 1177 (assessing the Tenth Circuit’s version of the Montgomery Ward factors, known as the Stewart Capital factors). The second and the third factors are closely intertwined, Garfias-Rodriguez, 702 F.3d at 521, and therefore are analyzed together. If a new rule represents an abrupt departure from well established practice, a party’s reliance on the prior rule is likely to be reasonable, whereas if the rule merely attempts to fill a void in an unsettled area of law, reliance is less likely to be reasonable. Id. (quoting Retail, Wholesale & Dep’t Store Union, 466 F.2d at 390–91).
Whether an agency announces a new interpretation of an ambiguous statute through formal rulemaking or through adjudication, a court must defer to the agency’s decision so long as it is reasonable. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (holding that the court should have applied Chevron deference to the BIA’s construction of the statute which it administers in an adjudicatory proceeding). This is true even if the agency’s interpretation overrides a court’s prior judicial construction of the statute. See Brand X, 545 U.S. at 982. And such a rule may even apply retroactively, if the rule has a permissible retroactive effect in a particular case. See Garfias-Rodriguez, 702 F.3d at 520.
III
We now consider whether Reyes’s 2011 conviction under
A
The BIA deemed Reyes to be removable as an alien who at any time after admission is convicted of two or more crimes involving moral turpitude.
The question whether a conviction under the statute at issue in this case,
In Betansos v. Barr, we assumed that Cortes Medina enunciated a new agency rule promulgated through adjudication, and we reiterated the principle that [u]nder Brand X, we must defer to the BIA’s interpretation of [crime involving moral turpitude] in Cortes Medina unless its conclusion is unreasonable. 928 F.3d 1133, 1141 (9th Cir. 2019). After determining that BIA did not misrepresent any authorities, engaged in reasoned and thorough analysis, and relied on published BIA authority, we held that the BIA’s interpretation of
Betansos next assumed that Cortes Medina had a retroactive effect, and turned to the question whether it was permissible to apply Cortes Medina retroactively to a petitioner who incurred a conviction under
While the fourth factor weighed in the petitioner’s favor because deportation creates a substantial burden, the fifth factor tipped toward the government based on the need for uniformity in immigration law. Id. After weighing these factors in light of each other, we held that it was permissible to apply Cortes Medina retroactively to the petitioner in that case. Id. Given that the petitioner’s
We now turn to the question whether Cortes Medina’s interpretation of crime involving moral turpitude as including convictions under
1
We first consider whether applying Cortes Medina to Reyes’s guilty plea in 2011 would have any retroactive effect at all. Both the government and the dissent argue that it would not. In their view, after Cortes Medina was decided in 2013, Reyes was on notice that if he incurred another
We disagree, because this argument is contrary to the Supreme Court’s definition of retroactivity. Landgraf made clear that a law is retroactive if it changes the legal consequences of acts completed before its effective date, gives a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed,
In this case, Cortes Medina changed the legal consequences of Reyes’s 2011 conviction under
Second, after Cortes Medina was decided, Reyes’s 2011 conviction of a
2
Although the BIA’s adjudicatory rule in Cortes Medina has a retroactive effect on Reyes’s 2011 conviction, it is not necessarily an impermissible retroactive effect that is “fatal to its validity.” See Chenery II, 332 U.S. at 203. We must still determine whether it is permissible to apply Cortes Medina retroactively to Reyes. We do so by applying the Montgomery Ward factors to weigh the burdens and benefits of retroactivity in this case. In conducting this analysis, we are guided by Betansos.9
Moving to the second factor, “whether the new rule represents an abrupt departure from well established practice,” Betansos already decided that Cortes Medina abruptly departed from Nunez, and so the second factor favors Reyes. See Betansos, 928 F.3d at 1143–44.
The third factor, the extent to which Reyes relied on Nunez, also favors Reyes. Although the reliance analysis “is highly fact dependent and conducted on a case-by-case basis,” id. at 1146 n.6, the Supreme Court has indicated that “as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions,” St. Cyr, 533 U.S. at 322; see also Garcia-Martinez v. Sessions, 886 F.3d 1291, 1295 (9th Cir. 2018) (relying on this presumption in applying the Montgomery Ward factors). Therefore, although Reyes “has not shown that he in fact relied on Nunez,” see Betansos, 928 F.3d at 1145 (emphasis added), there is a rebuttable presumption that Reyes knew about and relied on Nunez when he pleaded guilty to a section 314.1 offense in 2011. The government has not rebutted this presumption.10
In applying the fourth and the fifth factors (the degree of burden on Reyes and the statutory interest in applying a new rule), we are again guided by Betansos. See id. at 1145–46. Cortes Medina significantly burdens Reyes because it would make his 2011 conviction a crime involving moral turpitude, which carries unfavorable immigration consequences. See id. at 1145. As in Betansos, the fifth factor tips toward the government because “non-retroactivity impairs the uniformity of a statutory scheme, and the importance of uniformity in immigration law is well established.”11 See id. (quoting Garfias-Rodriguez, 702 F.3d at 523).
Taking these factors together, the second, third, and fourth factors all weigh against applying Cortes Medina to Reyes’s 2011 conviction, and the fifth factor, which weighs in favor of retroactivity, is not dispositive. Because imposing new legal consequences on Reyes’s decision to plead guilty to a section 314.1 offense would conflict with principles of “fair notice, reasonable reliance and settled expectations,” St. Cyr, 533 U.S. at 323 (quoting Landgraf, 511 U.S. at 270),
The dissent’s central reason for claiming that Cortes Medina is not impermissibly retroactive amounts to little more than a disagreement with Betansos. First, the dissent argues, we should ignore Betansos’s conclusion on the second Montgomery Ward factor (that Cortes Medina abruptly departed from Nunez) because the third factor (reliance) was controlling in Betansos, and therefore the second factor was irrelevant to the facts of the case and “obviously dictum.” Dissent at 31–32. This argument evinces a misunderstanding of the Montgomery Ward factors. In determining whether a new rule has an impermissible retroactive effect, we must engage in a balancing test that weighs all factors together, with the second and third factors “closely intertwined,” and no one factor being dispositive. See Garfias-Rodriguez, 702 F.3d at 523. Because no single Montgomery Ward factor is controlling, Betansos’s analysis of the second factor was “an issue germane to the eventual resolution of the case” that was resolved “after reasoned consideration” and is therefore not dicta. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) (per curiam) (quoting United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)).12 Accordingly, “we are bound by our
Second, the dissent contends that the third factor (reliance) does not favor Reyes because the state of the law in 2011 when Reyes pleaded guilty is irrelevant; rather, the dissent argues, all that matters is the state of the law in 2014 when Reyes was subject to the conviction that triggered Reyes’s eligibility for removal. Dissent at 42–43. This view is erroneous, because the focus of the retroactivity analysis is on whether Cortes Medina changed the legal consequences of Reyes’s 2011 conviction, not on how it affected Reyes’s later actions.
We conclude that the BIA improperly applied Cortes Medina to Reyes’s 2011 conviction under section 314.1, and therefore that conviction may not be deemed a crime involving moral turpitude. Because Reyes has only one conviction for a crime involving moral turpitude, and the government sought to remove him for having two convictions for crimes involving moral turpitude,
PETITION GRANTED.
VANDYKE, Circuit Judge, dissenting:
Yet again we are presented with a case study in how the Ninth Circuit’s abysmal and indefensible immigration precedents are the gifts that keep on taking—even where, as here, my colleagues in the majority are simply trying to faithfully apply our faithless precedent. My colleagues feel cabined by a chain of errors from our past, initiated when Judge Reinhardt disdainfully dismissed California jury verdicts and the BIA, pronouncing that, in his view, “lewdly … [e]xpos[ing] … private parts … in any public place” is neither “base, vile, and depraved,” nor does it “shock the conscience.” Nunez v. Holder, 594 F.3d 1124, 1130, 1138 (9th Cir. 2010) (citation omitted). After the BIA rushed to correct our grossly wrong precedent, see Matter of Cortes Medina, 26 I. & N. Dec. 79, 83 (BIA 2013), we begrudgingly acknowledged that the BIA was right after all, and that “lewd intent” in “willful exposure” to unwilling victims indeed constitutes a crime involving moral turpitude (CIMT). See Betansos v. Barr, 928 F.3d 1133, 1142 (9th Cir. 2019). But like a politician who can’t even manage a good mea culpa, our Betansos decision somehow concluded that the BIA’s
Presented with this mess, the majority apparently believes it must hold its nose and propagate the errors of Nunez and Betansos due to the timing of one of the petitioner’s crimes in this case. Jorge Reyes Afanador committed several sexual assaults and received multiple convictions for indecent exposure. Congress created an obligation to deport those who commit multiple CIMTs,
1. The Errors of Nunez
The collateral consequences of our reprehensible Nunez decision reverberate through the majority opinion. The petitioner in Nunez had convictions for petty theft (a CIMT) and indecent exposure under
In reaching this conclusion, the Nunez majority minimized the “turpitudinous” nature of a section 314.1 crime, allowing that while “California’s indecent exposure statute criminalizes a range of conduct that offends the sensibilities of many, and perhaps most, people,” id. at 1133, the panel theorized that perhaps the victims of intentional lewd exposure of a defendant’s private parts were only “in theory … offended by the conduct, even if, in actuality, they [were] not.” Id. at 1134. Citing nude dancing, a man who “in a fit of ‘road rage’ exposed his penis and yelled” a vulgar remark at a female driver, and a boy who intentionally engaged the attention of his “two female classmates” and exposed himself, id. at 1137, the majority declared such behavior “relatively harmless.” Id. at 1138. Discounting section 314.1’s requirement of lewd intent—found satisfied by a jury in the road rage case and the state court of appeals in the classroom exposure case—the Nunez majority determined these examples were simply instances of
The court in Nunez reversed the BIA by a bare two-judge majority. The dissent argued that the judiciary’s perception of what should be defined as a “tasteless prank” rather than sexual assault does not, in and of itself, change the law or the facts. Id. at 1139 (Bybee, J., dissenting). The dissent observed first that the nude dancing case cited by the majority as evidence for “a realistic probability … that [California] would apply its statute to conduct” falling outside of the definition of a CIMT was both “expressly disapproved” by the California Supreme Court and had “not been cited” since 1982. Id. (citation omitted). As to the road rage and classroom exposure cases relied on by the majority, the dissent derided the majority’s “collateral attack on these convictions” as “wholly inappropriate … and, at best, revisionist history.” Id. In the road rage case, the California Court of Appeal determined that the defendant’s exposure “for the purpose of sexually insulting … the other person” demonstrated sufficient lewd intent to violate section 314.1. Id. at 1147 (citation omitted). In the classroom case, the California Court of Appeal expressly found “facts suggesting
2. The Restoration by Cortes Medina
The BIA quickly “remed[ied the] deficiency” exploited by the Nunez majority and published a decision defining crimes under section 314.1 as CIMTs, unsurprisingly adopting the analysis from the Nunez dissent. Cortes Medina, 26 I. & N. Dec. at 81 n.3. The BIA applied the categorical approach to determine whether section 314.1 demonstrated a “realistic probability” of criminalizing actions not involving moral turpitude. Id. at 82 (citation omitted). Because section 314.1 required lewd intent, the BIA surveyed the caselaw and concluded that the element of intent brought “the offense of indecent exposure within the definition of a crime involving moral turpitude.” Id. at 83.
Analyzing California court decisions involving section 314.1, the BIA noted that the defendants all “had the requisite obscene or indecent intent at the time of the offense” and determined that the Nunez majority created a “definition of moral turpitude [that was] too narrow.” Id. at 83–84. Adopting the Nunez dissent’s examination of the road rage and classroom exposure cases, the BIA concluded that neither the Nunez majority nor the respondent in the case before it “presented any evidence that California applied the statute” to conduct that was “not morally turpitudinous.” Id. at 86.
Post-Cortes Medina, our court in Betansos reluctantly admitted that the BIA had overruled Nunez. Although “hesitat[ing] to defer to the BIA’s general understanding of the term ‘moral turpitude,’” Betansos, 928 F.3d at 1139 (citation omitted), this court ultimately deferred to Cortes Medina because the panel could “[]not say that the BIA’s decision [was] unreasonable” and thus had to defer under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Betansos, 928 F.3d at 1142.
But because Betansos committed his section 314.1 crime in 2002, the panel also analyzed whether it could apply Cortes Medina retroactively pursuant to Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982). Betansos, 928 F.3d at 1143–46. The Betansos panel analyzed the third Montgomery Ward factor—the petitioner’s reliance on a prior rule—and concluded that Betansos could not demonstrate a reliance interest on our court’s wrong Nunez decision because Betansos’s last section 314.1 conviction was in 2002, long before Nunez was decided. Betansos, 928 F.3d at 1145. This holding on the third factor was dispositive because “Betansos [could] not show[] that he in fact relied on Nunez (under Montgomery Ward factor three).” Id.
Notwithstanding that the third factor controlled Betansos’s appeal, the panel also asserted, despite its irrelevance to the facts of the case, that the panel believed “it would have been reasonable to rely on Nunez between February 2010 and January 2013 (under Montgomery Ward
The majority in this case makes two unsuccessful attempts to defend the substance of Betansos’s indefensible conclusion that Cortes Medina represented a “complete surprise.” Id. First, the majority tries to subtly refashion Montgomery Ward’s second-factor inquiry from whether the agency’s “new rule represents an abrupt departure from well established practice,” Montgomery Ward, 691 F.2d at 1333 (emphasis added), into asking instead whether the agency had any “adjudicatory rule” formally promulgated through the agency’s precedential decision-making. If the agency didn’t have any such formal “adjudicatory rule” arising from a precedential decision, then, per the majority, none of the agency’s past practice matters. But of course, if all that Montgomery Ward’s second factor cared about was whether the agency’s new rule was a departure from an old “rule” (adjudicatory or otherwise), it could have easily said that—and would have. Instead, the Montgomery Ward test
This is clearly demonstrated by the test’s namesake case itself. Montgomery Ward was a case addressing FTC rules regarding the placement of warranty information around Montgomery Ward’s department stores, and the FTC argued that the binders containing warranty information should have been available on every floor. 691 F.2d at 1326–27. In analyzing whether the FTC’s current interpretation of its rule demonstrated “an abrupt departure from well established practice,” the court in Montgomery Ward observed that the plaintiff’s prior “involvement in the rule-making process would indicate that [the new agency interpretation of the rule in its order] would not be a complete surprise,” id. at 1333–34, given that certain aspects of the new interpretation were “presaged in the commentary published in the Federal Register upon the promulgation of the presale rule,” id. at 1330. Montgomery Ward’s discussion of the activity prior to the promulgation of the agency’s formal rule demonstrates the second factor’s inquiry does not stop at
This is further demonstrated by the two examples contrasted in Montgomery Ward’s articulation of the second factor. On one hand, “an abrupt departure from well established practice” by the agency cuts against retroactive application of a new rule. Id. at 1333. On the other hand, where an agency is “merely attempt[ing] to fill a void in an unsettled area of law,” that cuts in favor of retroactive application. Id. Here, both of Montgomery Ward’s paradigmatic examples favor the government. The BIA never “depart[ed] from its well established practice,” and because, prior to Cortes Medina, it had not issued a formal rule, it was also “fill[ing] a void in an unsettled area of law.”4
Which leads directly into the majority’s second failed attempt to bolster Betansos’s unnecessary dicta. The majority strangely concludes that, while years of the BIA’s consistent unpublished decisions did “not establish the practice or policy of the agency,” somehow our court’s Nunez decision did. See also Betansos, 928 F.3d at 1144 (“Cortes Medina did not ‘fill
Both because the BIA’s Cortes Medina decision (1) was not an “abrupt departure from well established practice,” and because it (2) settled an “ongoing … back-and-forth between this Court and the BIA about the proper interpretation” of ambiguous language in INA, Montgomery Ward’s second factor obviously cuts strongly in favor of the government. Betansos, 928 F.3d at 1143–44. The Betansos panel reached the opposite conclusion only because it addressed the issue as dicta, “casually and without analysis” and as “merely a prelude to” Montgomery Ward’s third factor—the “legal issue that command[ed] the panel’s full attention” because it controlled the outcome in Betansos. United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001) (en banc) (Kozinski, J., concurring).
3. Our Court’s Embarrassing Nunez Blunder Does Not Benefit Reyes
Even putting all that aside, and assuming we were still operating in the vestiges of the shadow cast by our court’s errors in Nunez and erroneous dicta in Betansos, we still would not need to remand this case. While the majority concludes the lingering presence of Nunez forces its hand, I arrive at a different conclusion on how Montgomery Ward factors two and three apply to Reyes’s multiple convictions.5
Under the third factor, while the majority argues that Cortes Medina had a retroactive effect on Reyes’s 2011 section 314.1 indecent exposure conviction, Reyes’s removability was only triggered by the commission of his second CIMT in 2014—after the BIA had decided Cortes Medina. Reyes was on notice by that point that he could not rely on Nunez and that his conviction of a second CIMT under
As our court has repeatedly recognized, the “second and the third factors are closely intertwined,” so it’s not surprising that the second factor also goes against Reyes. Betansos, 928 F.3d at 1143 (citation omitted). Like the third factor, since Cortes Medina had already issued before his second section 314.1 indecent exposure conviction, Reyes can hardly
A. Montgomery Ward Factor 3
The majority focuses solely on Reyes’s 2011 crime and determines that, based on caselaw where a change in the applicable law changed the impact of a single crime on the petitioner’s life, Cortes Medina “attache[d] a new disability” to Reyes’s 2011 conviction for indecent exposure under
Instead, Reyes recidivated and was again convicted of indecent exposure in 2014. As such, the effect of Cortes Medina is more like an “[e]nhanced punishment imposed for the later offense[, which] is not to be viewed as an additional penalty for the earlier crimes, but instead, as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.” Id. at 271–72 (cleaned up) (quoting Witte v. United States, 515 U.S. 389, 400 (1995)); cf. Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994) (observing that statutes have an impermissible retroactive effect when they “impose new duties with respect to transactions already completed” (emphasis added)). Increasing punishment for repetitive criminal convictions after an individual commits his first crime, and imposing that enhancement only after the individual is convicted for a subsequent crime, does not constitute an impermissible retroactive application. See Rummel v. Estelle, 445 U.S. 263, 278 (1980) (affirming the trial court’s application of Texas’s recidivist statute, passed after Rummel’s first two felonies, to Rummel’s third felony conviction to incarcerate him for life, because he had been
Whether Reyes would have thought in 2011 that a conviction under section 314.1 was a CIMT is simply not relevant in this case—his first section 314.1 conviction in 2011 did not trigger his deportation under
As the Betansos panel explained, we may presume reliance if the “former, favorable rule was in place at the time the petitioner pleaded guilty or was convicted.” Betansos, 928 F.3d at 1144. But because the BIA’s authoritative Cortes Medina decision had already superseded the Nunez decision when Reyes pled in 2014, Reyes cannot demonstrate reliance on Nunez under factor three. He “knew” (either constructively or in reality) that he already had one CIMT under Cortes Medina, and that by pleading to a second, he would become deportable. Reyes therefore could not have “relied” on Nunez when it mattered: when he pled to his second CIMT in 2014.9
B. Montgomery Ward Factor Two
The majority here accepts the Betansos panel’s factor two dicta, but as discussed, our panel is not bound by that obviously wrong and unreasoned dicta and should not reflexively apply it here to conclude that the second factor weighs in favor of Reyes. But even if we were required to follow Betansos’s dicta, the key facts of this case are different from Betansos’s hypothetical because Reyes committed his critical second offense and pled guilty in 2014, after “it would have been reasonable to rely on Nunez between February 2010 and January 2013.” Betansos, 928 F.3d at 1145. And even if the second factor did weigh in favor of Reyes, here, as in Betansos, the fact that the third (and fifth) factors weigh against Reyes would result in denying his petition. See Betansos, 928 F.3d at 1145–46 (“[A]lthough the second factor arguably favors Betansos, we have held that factors two and three are ‘intertwined.’ Because factor three weighs against Betansos in this case, we hold that overall the factors support retroactive application against Betansos.”).
* * *
Today’s decision demonstrates what we all know from hard experience: fixing mistakes is usually much harder than making them in the first place. Unfortunately, the majority’s opinion perpetuates rather than acknowledges and addresses some of our more blatant recent immigration gaffes, and in so doing misses an opportunity to right our circuit’s badly listing immigration ship—at least a little. Reyes continued to commit crimes of moral turpitude even after he was on notice that if he committed another one, he would suffer
Notes
Even though Betansos pled guilty in 2002 and therefore could not have relied on our circuit’s 2010 Nunez decision when he pled, the majority here contends that Betansos’s statement that “it would have been reasonable to rely on Nunez between February 2010 and January 2013” was not dictum because Betansos “could have demonstrated reliance” in other ways by “identifying a specific event or action he took … in reliance on Nunez” (quoting Betansos). But Betansos did not actually assert any reliance on Nunez—whether in why he pled guilty in 2002 or in any of the other ways referenced by the majority—so Montgomery Ward’s third factor controlled everything in that decision, including any hypothetical way that Betansos theoretically “could have” relied on Nunez (but didn’t). The majority’s attempt to rely on counter-factual possibilities that Betansos “d[id] not assert,” 928 F.3d at 1145, is as nonsensical as saying that the Betansos’s second-factor discussion was not dicta because, even though Betansos pled guilty in 2002, he “could have” pled guilty in 2011 (in some parallel universe). The majority also objects that “Betansos’s analysis of the second factor was ‘an issue germane’” to the case’s resolution and thus could not be dicta, “[b]ecause no single Montgomery Ward factor is controlling.” Perhaps no single factor is controlling, but obviously one or more factors can be irrelevant in a particular case. See, e.g., Great W. Bank v. Off. of Thrift Supervision, 916 F.2d 1421, 1432 (9th Cir. 1990) (“considering the relevant [Montgomery Ward] factors,” the court determined that “two elements weigh decisively in favor of the Bank Board,” highlighting that there was no “well-established practice” and “the strong interest in applying a rule that corresponds to the plain language of the statute,” and did not discuss the other three factors). Indeed, the majority here acknowledges this by observing that the first factor “does not apply in the immigration context” at all. In Betansos, the second factor—i.e., whether Cortes Medina was a “complete surprise” in light of Nunez—was just as irrelevant as the first, given that “Betansos could not have relied on Nunez when he pleaded guilty in 2002 because Nunez had not yet been decided.” 928 F.3d at 1145 (emphasis added). The entire discussion of the second factor made no difference to the outcome in Betansos and was wholly unnecessary. Id. at 1143–45.Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.