Betansos v. Barr, 070519 FED9, 15-72347

Docket Nº:15-72347
Opinion Judge:MURGUIA, CIRCUIT JUDGE:
Party Name:Felipe Cruz Betansos, Petitioner, v. William P. Barr, Attorney General, Respondent.
Attorney:Robert Francis Jacobs (argued), Robert F. Jacobs & Associates, Santa Fe Springs, California, for Petitioner. Erica Miles (argued), Trial Attorney; John W. Blakeley, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Res...
Judge Panel:Before: Carlos T. Bea and Mary H. Murguia, Circuit Judges, and Stanley Allen Bastian District Judge. MURGUIA, Circuit Judge, specially concurring, joined by BASTIAN, District Judge.
Case Date:July 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Felipe Cruz Betansos, Petitioner,

v.

William P. Barr, Attorney General, Respondent.

No. 15-72347

United States Court of Appeals, Ninth Circuit

July 5, 2019

Argued and Submitted April 12, 2018 Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077-310-010

Robert Francis Jacobs (argued), Robert F. Jacobs & Associates, Santa Fe Springs, California, for Petitioner.

Erica Miles (argued), Trial Attorney; John W. Blakeley, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Carlos T. Bea and Mary H. Murguia, Circuit Judges, and Stanley Allen Bastian, [*] District Judge.

SUMMARY

[**]

Immigration

Denying Felipe Cruz Betansos's petition for review of a decision of the Board of Immigration Appeals, the panel deferred to the BIA's decision in Matter of Cortes Medina that a conviction for indecent exposure under California Penal Code § 314(1) is categorically a crime involving moral turpitude ("CIMT") and held that Cortes Medina applied retroactively to Betansos's case such that his § 314(1) conviction was a CIMT that made him ineligible for cancellation of removal.

In concluding that Betansos's indecent exposure conviction under § 314(1) was a CIMT, the BIA relied on its published decision in Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013). However, the BIA's decision in Cortes Medina contradicted this court's earlier decision, Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), in which the court held that indecent exposure under § 314(1) was not categorically a CIMT. In Nunez, the court determined that the BIA's unpublished decision did not merit deference and adopted a definition of moral turpitude that required the infliction of harm or the involvement of a protected class. In Cortes Medina, the BIA disagreed with Nunez's generic definition as being too narrow, concluding that the defining characteristic of a CIMT in the indecent exposure context is whether the offense includes "lewd intent."

The panel concluded that it must defer to Cortes Medina under National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005). The panel noted that, unlike in Nunez, the BIA in Cortes Medina presented analysis explaining how it arrived at its generic definition of moral turpitude and explained why violations of § 314(1) are a categorical match to that generic definition. Because Cortes Medina did not misrepresent the authorities it relied on, it relied on published BIA authority, and its analysis was reasoned and thorough, the panel concluded that it could not say that the BIA's decision was unreasonable.

Applying the five-factor retroactivity framework from Montgomery Ward &. Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), the panel also concluded that Cortes Medina applied retroactively to Betansos. The panel concluded that the first factor was not in play in this case, and that the fourth factor-the burden imposed by retroactive application- clearly favored Betansos, but that the fifth factor-the statutory interest in applying a new rule-leaned in the government's direction. Noting that the second factor- whether the new rule represents an abrupt departure from well established practice-arguably favored Betansos, the panel concluded that overall the factors supported retroactive application because factor three-reliance on the new rule-weighed against Betansos. Specifically, the panel concluded that Betansos did not show that he in fact relied on Nunez prior to the BIA's decision in Cortes Medina.

Specially concurring, Judge Murguia, joined by Judge Bastian, wrote separately to note a tension between the realities of criminal prosecutions and the tools the court applies in immigration cases involving the categorical approach. Judge Murguia wrote that, because the vast majority-and nearly all-of criminal cases are resolved through plea bargains, a gap remains in the approaches for demonstrating a "realistic probability" of prosecution for conduct that falls outside the generic definition of a crime. Accordingly, Judge Murguia noted that it would be worth developing a mechanism for considering what conduct prosecutors charge and results in defendants accepting pleas.

OPINION

MURGUIA, CIRCUIT JUDGE:

Felipe Cruz Betansos, a native and citizen of Mexico, appeals the Board of Immigration Appeals' ("BIA") dismissal of his application for cancellation of removal. In dismissing his appeal, the BIA affirmed the Immigration Judge's ("IJ") conclusion that Betansos's conviction for indecent exposure under California Penal Code § 314(1) is categorically a crime involving moral turpitude ("CIMT"). Betansos's criminal record also includes a petty theft conviction, which he does not dispute is a CIMT. Therefore, if Betansos's indecent exposure conviction is a CIMT, Betansos is ineligible for cancellation of removal because aliens convicted of two CIMTs are ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(C).

In affirming the IJ's determination that Betansos's indecent exposure conviction is a CIMT, the BIA relied on its published decision in Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013), which held that a conviction under § 314(1) is categorically a CIMT. Cortes Medina contradicts our 2010 decision, Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), in which we rejected the BIA's determination that § 314(1) is categorically a CIMT because the BIA decision we reviewed in Nunez rested entirely on an unproven statement that § 314(1) requires sexual motivation. Nunez, 594 F.3d at 1133. In Nunez, we held that indecent exposure under § 314(1) is not categorically a CIMT. Id. at 1138.

We must now decide whether to defer to the BIA's more recent determination in Cortes Medina that a violation of § 314(1) categorically constitutes a CIMT. If we defer to Cortes Medina, we must also decide whether we will do so retroactively. For the reasons explained below, we conclude that we must defer to Cortes Medina pursuant to the framework outlined in National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967, 982 (2005). We also conclude that Cortes Medina applies retroactively in Betansos's case. We therefore deny Betansos's petition for review.

I.

Betansos entered the United States in 1989 and has resided here since. He is unmarried, but he lives with his longtime girlfriend with whom he has a 17-year-old daughter who is a United States citizen.

Betansos has five criminal convictions in California. Relevant here are his 1989 petty theft, Cal. Penal Code § 484(a), and 2002 indecent exposure, Cal. Penal Code § 314(1), convictions.1

On April 22, 2010, the Department of Homeland Security ("DHS") served Betansos with a Notice to Appear, which initiated his removal proceedings. At that time, Betansos was in custody. On May 11, 2012, Betansos, represented by counsel, admitted that he is not lawfully present in the United States and is a citizen of Mexico and conceded removability. On September 14, 2012, Betansos and his attorney appeared before the IJ to file his application for cancellation of removal. About a year later, in October 2013, the IJ held another hearing and denied Betansos's application for relief.

A.

Betansos requested cancellation of removal as relief from deportation. To be eligible for cancellation of removal, Betansos had to demonstrate, among other things, that he was not convicted of certain enumerated offenses.2 8 U.S.C. § 1229b(b)(1)(C).

In denying Betansos's application for cancellation of removal, the IJ concluded that because Betansos had been convicted of two CIMTs-petty theft and indecent exposure-he was statutorily ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(B), (C). The IJ relied on Cortes Medina to conclude that indecent exposure constitutes a CIMT, noting that Cortes Medina held that indecent exposure under § 314(1) includes "the element of lewd intent." Cortes Medina was decided on January 8, 2013, after Betansos applied for cancellation of removal but before the IJ held the October 2013 hearing. Because Betansos sought no other form of relief, the IJ ordered Betansos removed to Mexico. Betansos timely appealed the IJ's decision to the BIA.

B.

The BIA dismissed Betansos's appeal on June 29, 2015. In dismissing the appeal, the BIA agreed with the IJ that Betansos was ineligible for cancellation of removal because he was convicted of two CIMTs. The BIA noted that Betansos did not contest that his petty theft conviction is a CIMT. Then, citing to Cortes Medina, the BIA affirmed the IJ's conclusion that Betansos's indecent exposure...

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