Olivas-Motta v. Whitaker

• Decision Date: 19 December 2018
• Docket Number: No. 14-70543,14-70543
• Citation: 910 F.3d 1271
• Parties: Manuel Jesus OLIVAS-MOTTA, aka Manuel Jesus Olivas-Notta, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

910 F.3d 1271

Manuel Jesus OLIVAS-MOTTA, aka Manuel Jesus Olivas-Notta, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 14-70543

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 10, 2018 San Francisco, California

Filed December 19, 2018

K. Lee Hartzler (argued), San Diego, California, for Petitioner.

Sarah A. Byrd (argued) and Keith I. McManus, Senior Litigation Counselors; Cindy S. Ferrier, Assistant Director; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX9-705.

Before: J. Clifford Wallace, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.

Dissent by Judge Watford

OPINION

WALLACE, Circuit Judge:

An immigration judge (IJ) ordered Manuel Jesus Olivas-Motta’s removal because he had been convicted of two crimes involving moral turpitude (CIMTs). The Board of Immigration Appeals (Board) dismissed Olivas-Motta’s appeal from the IJ’s order. Olivas-Motta now petitions for review of the Board’s dismissal. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

I.

Olivas-Motta is a citizen of Mexico who was admitted to the United States of America as a lawful permanent resident on or about October 12, 1976. He has since been convicted of two felonies. On August 11, 2003, he was convicted of facilitation to commit unlawful possession of marijuana for sale in violation of Arizona Revised Statutes §§ 13-1004, 13-3405. On November 26, 2007, he was convicted of felony endangerment under Arizona Revised Statutes § 13-1201.

On April 2, 2009, the Department of Homeland Security initiated removal proceedings against Olivas-Motta under 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien convicted of two CIMTs. The IJ determined, and the parties no longer dispute, that the facilitation offense was a CIMT. As to the endangerment offense, the IJ determined that it was neither categorically a CIMT nor a CIMT under the modified categorical approach. However, the IJ examined evidence beyond the record of conviction, including police reports, and determined that the offense involved moral turpitude. The IJ then sustained the charge of removal. The Board relied on the same grounds to conclude that the endangerment offense was a CIMT and dismissed Olivas-Motta’s appeal.

Olivas-Motta petitioned for review of the Board’s decision. While the petition was pending, the Board published an opinion holding that felony endangerment under Arizona Revised Statutes § 13-1201 was categorically a CIMT. In re Leal , 26 I. & N. Dec. 20, 27 (B.I.A. 2012) (Leal I ). We upheld that determination. Leal v. Holder , 771 F.3d 1140, 1148–49 (9th Cir. 2014) ( Leal II ). But we declined to consider Leal I ’s relevance to Olivas-Motta in his first petition because the Board had not originally decided his appeal on the ground that felony endangerment was categorically a CIMT. Olivas-Motta v. Holder , 746 F.3d 907, 917 (9th Cir. 2013), as amended (April 1, 2014); see also Ali v. Holder , 637 F.3d 1025, 1029 (9th Cir. 2011) (confining our review to grounds relied upon by the Board). Instead, we granted the petition and remanded because "an IJ and the [Board] are confined to the record of conviction in determining whether an alien has been convicted of a CIMT." Olivas-Motta , 746 F.3d at 908. On remand, the Board applied Leal I to conclude that felony endangerment was categorically a CIMT and dismissed Olivas-Motta’s appeal.

Olivas-Motta again petitions for review of the Board’s dismissal. He argues that the Board’s application of Leal I was impermissibly retroactive, that preclusion bars the Board from reconsidering whether felony endangerment was categorically a CIMT, and that the phrase CIMT is unconstitutionally vague.

Olivas-Motta also argues that we are not bound by Leal II because it was wrongly decided. But this panel has no power to overrule circuit precedent. Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that circuit precedent may be overturned only en banc, subject to exceptions not applicable here).

II.

We review constitutional claims and questions of law de novo . Latter-Singh v. Holder , 668 F.3d 1156, 1159 (9th Cir. 2012) ; see also 8 U.S.C. § 1252(a)(2)(C), (D). Whether a new agency interpretation may be applied retroactively is a question of law. See Garfias-Rodriguez v. Holder , 702 F.3d 504, 514–15 (9th Cir. 2012) (en banc). Whether preclusion is available is also a question of law. Oyeniran v. Holder , 672 F.3d 800, 806 (9th Cir. 2012), as amended (May 3, 2012).

III.

When an agency decides to create a new rule through adjudicatory action, that new rule may apply retroactively to regulated entities. SEC v. Chenery Corp. , 332 U.S. 194, 203, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947). "[R]etroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles." Id. "If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law." Id.

We have applied this rule in the immigration context to determine whether Board decisions may apply retroactively. See, e.g. , Garfias-Rodriguez , 702 F.3d at 515–23 ; Miguel-Miguel v. Gonzales , 500 F.3d 941, 950–53 (9th Cir. 2007). In such cases, we have relied on the five-factor test set forth in Montgomery Ward & Co., Inc. v. FTC , 691 F.2d 1322, 1333 (9th Cir. 1982). Olivas-Motta argues that, in this case, the Montgomery Ward factors strongly counsel against retroactively applying Leal I to his case, and that the Board accordingly erred in concluding that Arizona felony endangerment is categorically a CIMT.

A.

As a threshold matter, we must address whether retroactivity is implicated by Leal I . The government argues that a change in law is a prerequisite to Montgomery Ward balancing, and that we should not conduct a retroactivity analysis because no change in law occurred. Olivas-Motta argues that the Montgomery Ward factors themselves account for whether a change in law has occurred, and that Montgomery Ward balancing is therefore appropriate because Leal I was decided after his guilty plea.

We conclude that a change in law must have occurred before Montgomery Ward is implicated. The requirement that the law have changed in some way is generally a settled principle of retroactivity analysis. See James B. Beam Distilling Co. v. Georgia , 501 U.S. 529, 534, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) ("It is only when the law changes in some respect that an assertion of nonretroactivity may be entertained"); Morales-Izquierdo v. Dep’t of Homeland Sec. , 600 F.3d 1076, 1090 (9th Cir. 2010), overruled in part on other grounds by Garfias-Rodriguez , 702 F.3d at 516 (" Montgomery Ward and its progeny deal with the problems of retroactivity created when an agency, acting in an adjudicative capacity, so alters an existing agency-promulgated rule that it deprives a regulated party of the advance notice to conform its conduct to the rule"). It would be incongruous to apply a different rule here because the principles animating a statute’s retroactivity — "fair notice, reasonable reliance, and settled expectations" — are equally animating in Olivas-Motta’s immigration proceedings. See Vartelas v. Holder , 566 U.S. 257, 273, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012) (quoting Landgraf v. USI Film Prod. , 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ). Moreover, were we to adopt the rule that Montgomery Ward balancing is required regardless of whether a change in law has occurred, the mere existence of a new published decision on an issue would always trigger retroactivity analysis. This too is contrary to settled law on this issue. See Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue , 297 U.S. 129, 135, 56 S.Ct. 397, 80 L.Ed. 528 (1936) (holding that a tax regulation elaborating on a standard governed by statute "is no more retroactive in its operation than is a judicial determination construing and applying a statute to a case in hand"). We therefore hold that Montgomery Ward retroactivity analysis is only applicable when "an agency consciously overrules or otherwise alters its own rule or regulation," or "expressly considers and openly departs from a circuit court decision."¹ Garfias-Rodriguez , 702 F.3d at 518–19.

Olivas-Motta’s primary argument against this conclusion is the language of the Montgomery Ward factors. It is true that the second Montgomery Ward factor is "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 ." Montgomery Ward , 691 F.2d at 1333 (emphasis added) (quoting Retail, Wholesale and Dep’t Store Union v. NLRB , 466 F.2d 380, 390 (D.C. Cir. 1972) ). This language suggests that a change in law can occur when the rule was previously unclear, and an adjudicatory decision brings clarity to the issue. But we must consider the Montgomery Ward factors in light of the general rules of retroactivity, which require a change of law. In addition, the other Montgomery Ward factors themselves contemplate a change from a "former rule" or "old standard." See Montgomery Ward , 691 F.2d at 1333 (quoting Retail , 466 F.2d at 390 ). We therefore distinguish between cases where a rule, such as 8 U.S.C. § 1227(a)(2)(A)(ii), already exists, and an administrative decision simply clarifies the rule’s application, and cases where the decision itself would "take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability, in respect to transactions or considerations already past." Vartelas , 566 U.S. at 266, 132 S.Ct. 1479 (alterations omitted) (quoting Soc’y for Propagation of Gospel v. Wheeler , 22 F. Cas. 756, 767 (No. 13156) (CCNH 1814) ). In the latter cases, the...