Reyes Afanador v. Garland, 17-70127

• Decision Date: 27 August 2021
• Docket Number: 17-70127
• 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

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

August 27, 2021

Argued and submitted December 11, 2020 San Francisco, California

On Petition for Review of an order of the Board of Immigration Appeals, Agency No. A088-881-375

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.

SUMMARY^[*]

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 California Penal Code section 314.1 as a crime involving moral turpitude.

After becoming a lawful permanent resident, Reyes was convicted in 2011 and 2014 for violations of section 314.1. Based on these convictions, an immigration judge and the BIA found him removable 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. Reyes argued that Cortes Medina, in which the BIA held that a violation of section 314.1 was a crime involving moral turpitude, could not be applied retroactively to his 2011 conviction.

The panel explained that, before 2010, the BIA held in nonprecedential decisions that section 314.1 convictions were crimes involving moral turpitude. In Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), however, this court held that a section 314.1 conviction was not a crime involving moral turpitude because the full range of prohibited conduct was not morally turpitudinous. The BIA issued Cortes Medina in 2013, holding that section 314.1 was a crime involving moral turpitude, and that an indecent exposure offense is morally turpitudinous when it involves an element of lewd intent. In Betansos v. Barr, 928 F.3d 1133 (9th Cir. 2019), this court held that the BIA's interpretation of section 314.1 in Cortes Medina was reasonable, and therefore superseded Nunez. Betansos applied the five-factor balancing test from Montgomery Ward &Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982), to conclude that it was permissible to apply Cortes Medina retroactively to the petitioner.

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 8 U.S.C. § 1227(a)(2)(A)(i) after Cortes Medina classified his section 314.1 offense as a crime involving moral turpitude because his offense was punishable by a term of at least 16 months and, under 8 U.S.C. § 1227(a)(2)(A)(i), an alien convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed is removable. Second, after Cortes Medina was decided, Reyes's 2011 conviction became a potential ground for removal under § 1227(a)(2)(A)(ii) (an alien convicted of two crimes involving moral turpitude).

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 third factor (the extent of reliance) favored Reyes. Observing that Reyes had not shown that he in fact relied on Nunez, the panel explained there was a rebuttable presumption that he relied on Nunez when he pleaded guilty in 2011, and the government had not rebutted this presumption. As to the fourth factor (the degree of burden) the panel concluded that Cortes Medina significantly burdened Reyes by making his 2011 conviction a crime involving moral turpitude, which carries unfavorable immigration consequences. The panel concluded that the fifth factor (the statutory interest in applying a new rule) tipped toward the government because non-retroactivity impairs the uniformity of a statutory scheme. Taking these factors together, the panel concluded the retroactive effect here would be impermissible.

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 § 1227(a)(2)(A)(ii). The panel stated that, on remand, the agency may consider additional evidence from the parties, including evidence rebutting the presumption that Reyes relied on Nunez in 2011.

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 was a "complete surprise," even though the BIA had reached exactly that conclusion in case after case for well over a decade. Due to the multiple crimes Reyes committed-the key conviction occurring after Cortes Medina-Judge VanDyke wrote he did not believe the court is forced to extend the court's past distortion of the "fluid boundaries" of "vile" conduct.

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.

OPINION

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's 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...