Afanador v. Garland

• Decision Date: 27 August 2021
• Docket Number: No. 17-70127,17-70127
• Citation: 11 F.4th 985
• Parties: Jorge Andres Reyes AFANADOR, aka Jorge Alberto Reyes, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

11 F.4th 985

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.

Argued and Submitted December 11, 2020 San Francisco, California

Filed August 27, 2021

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.

Before: William A. Fletcher, Sandra S. Ikuta, and Lawrence VanDyke, Circuit Judges.

Dissent by Judge VanDyke

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 8 U.S.C. § 1227(a)(2)(A)(ii). We hold that the BIA erred in applying its decision in Matter of Cortes Medina , 26 I. & N. Dec. 79, 81 (BIA 2013), retroactively to classify Reyes's 2011 conviction for indecent exposure as a crime involving moral turpitude. Therefore, we grant the petition for review.

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 California Penal Code section 314.1 and the other in 2008 under California Penal Code section 647(a).¹ In 2009, Reyes married a United States citizen and successfully adjusted his status through an application that his wife filed on his behalf.

In 2011, Reyes was again charged with indecent exposure under section 314.1 and pleaded no contest to a felony. He was sentenced to eight months in jail and three years probation for this offense. In 2014, he pleaded no contest to an additional felony for violation of section 314.1, for which he was sentenced to 16 months in prison and three years of parole upon release. In 2015, the government initiated removal proceedings. Relying on the 2011 and 2014 convictions, the government issued a notice to appear (NTA) charging Reyes with being subject to removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.²

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 section 314.1 were not categorically crimes involving moral turpitude. He also submitted applications for relief from removal.³ Relying on a precedential BIA opinion holding that a violation of section 314.1 was a crime involving moral turpitude, see Cortes Medina , 26 I. & N. Dec. at 81, the IJ concluded that Reyes was removable as charged. The IJ also denied Reyes's cancellation of removal application as a matter of discretion and denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).

On appeal to the BIA, Reyes argued that the IJ erred by ignoring a Ninth Circuit decision holding that an offense under section 314.1 was not categorically a crime involving moral turpitude, see Nunez v. Holder , 594 F.3d 1124, 1133 (9th Cir. 2010). The BIA rejected this argument on the ground that its precedential opinion in Cortes Medina superseded our decision in Nunez . See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs. , 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (holding that federal courts must defer to certain agency decisions even when they overrule prior judicial opinions). The BIA rejected Reyes's other claims. This petition for review followed.

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 section 1227(a)(2)(A)(ii), which applies to an alien convicted of two or more crimes involving moral turpitude.

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, 2 Pet. 417, 7 L.Ed. 470 (1829). This general rule is based on "deeply rooted" principles of equity and due process. Landgraf v. USI Film Prods. , 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). "Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Id.

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, 114 S.Ct. 1483. 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, 114 S.Ct. 1483 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, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (cleaned up).

The Supreme Court has applied these principles in several immigration cases. In St. Cyr , the Supreme Court considered the retroactivity of new legislation which stripped the government of discretion to waive deportation for aliens who had committed certain crimes. Id. at 321–22, 121 S.Ct. 2271. The Court held this legislation was retroactive to the extent it applied to aliens who had entered guilty pleas before the legislation was enacted. Id. at 326, 121 S.Ct. 2271. The Court reached a similar conclusion in Vartelas v. Holder when it considered new legislation that rendered lawful permanent residents convicted of certain crimes inadmissible if they left the United States for a brief period. 566 U.S. 257, 262–63, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012). The Court held this legislation had a congressionally unauthorized retroactive effect to the extent it applied to lawful permanent residents who had previously pleaded guilty to such crimes. Id. at 263, 275, 132 S.Ct. 1479. In both cases, the new statutory provision changed the legal consequences of plea agreements entered into before the statute's effective date.

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, 113 S.Ct. 2510, 125 L.Ed.2d 74 (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, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Federal courts must also retroactively apply new rules announced in civil cases, except in narrow circumstances. Harper , 509 U.S. at 97–98, 113 S.Ct. 2510.

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 rules to new factual circumstances. De Niz Robles v. Lynch , 803 F.3d 1165, 1172 (10th Cir. 2015) (Gorsuch, J.). In these circumstances, an agency's determinations apply retroactively, like other judicial decisions. See id. ; see also SEC v. Chenery Corp ., 332 U.S. 194, 203, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) ( Chenery II ) ("Every case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency.").

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, 67 S.Ct. 1760 ; 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, 109 S.Ct. 468, 102 L.Ed.2d 493 (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, 109 S.Ct. 468 ).

An agency may also exercise its congressionally delegated legislative authority through adjudicatory proceedings, where "new administrative policy [is] announced and implemented through adjudication." Montgomery Ward , 691 F.2d at 1328. When an agency issues new rules of general applicability through...