FILED NOT FOR PUBLICATION JUN 01 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO NAVA ROMERO, AKA Nos. 16-73655 Antonio Nava, AKA Antonio E. Nava 17-70848 Romero, Agency No. A044-099-246 Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 9, 2018 San Francisco, California
Before: D.W. NELSON, KLEINFELD, and W. FLETCHER, Circuit Judges.
Petitioner seeks review of the Board of Immigration Appeals’ determination
that his two convictions for shoplifting under Arizona law, A RIZ. REV. STAT. § 13-
1805(A)(1), categorically constitute “crimes involving moral turpitude” under the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii). As in Garcia-
Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018), the Petitioner’s state
convictions did not constitute “crimes involving moral turpitude” under BIA
precedent at the time he committed them. Id. at 1294. The BIA modified its
generic definition of theft “crimes involving moral turpitude” to include Arizona
shoplifting after the Petitioner’s conduct and after his guilty pleas. See Matter of
Diaz-Lizarraga, 26 I. & N. Dec. 847, 849, 852–54 (B.I.A. 2016). We conclude, as
we did in Garcia-Martinez, that the BIA erred in determining that Petitioner’s
offenses were “crimes involving moral turpitude” under its earlier precedent, and
that the BIA’s new generic definition, announced in Diaz-Lizarraga, does not apply
retroactively to the Petitioner’s convictions. We grant the petition and remand to
the BIA for proceedings consistent with this disposition.
In Garcia-Martinez, the petitioner had pled guilty to multiple theft offenses
under Oregon law. 886 F.3d at 1293. We analyzed the Oregon theft statutes and
determined that the “statutory scheme does not require a permanent taking of the
property in question[.]” Id. at 1294. We noted that “for many decades (at least
since 1947)[,] the BIA had held that ‘a theft offense categorically involves moral
turpitude if—and only if—it is committed with the intent to permanently deprive
2 an owner of property.’ ” Id. Our precedent recognized the same distinction.
Almanza-Arenas v. Lynch, 815 F.3d 469, 476 (9th Cir. 2016) (en banc). Thus, we
concluded, Garcia-Martinez’s theft offenses were not categorically “crimes
involving moral turpitude” at the time he committed them. Garcia-Martinez, 886
F.3d at 1294. The BIA has confirmed our interpretation of its earlier precedent.
Diaz-Lizarraga, 26 I. & N. Dec. at 849.
After Garcia-Martinez pled guilty to theft, and after the Petitioner in this
case pled guilty to shoplifting, the BIA modified its generic definition of theft
“crimes involving moral turpitude.” Id. at 849–52. Casting aside its old rule on
the grounds that “antiquity of our case law is not a sound reason for continuing to
adhere to it,” the BIA“update[d]” its jurisprudence, “overrul[ing]” its earlier
decisions. Id. at 852–55. Instead of requiring an “intent to permanently deprive an
owner of property,” id. at 849, the BIA now holds that theft offenses categorically
constitute “crimes involving moral turpitude” if they require “an intent to deprive
the owner of his property either permanently or under circumstances where the
owner’s property rights are substantially eroded.” Id. at 853 (emphasis added).
3 Recognizing that Diaz-Lizarraga “abrupt[ly] change[d] . . . the law,” we
answered in Garcia-Martinez the question that faces us here: whether prior theft
offenses can constitute “crimes involving moral turpitude” when, under BIA
precedent at the time they were committed, they were not. 886 F.3d at 1295. We
reasoned that although “the BIA can change its rules retroactively through
adjudication, . . . that authority is not unconstrained. Rather, we must balance the
reliance interest of those to whom the new rule will be applied against the
mischief, if any, that would be caused if the rule is not so applied.” Id. Applying
that reasoning, we found that the balance of interests “weigh[ed] heavily in
Garcia’s favor[,]” id., and we held that “basic fairness” prevented retroactive
application of the BIA’s new generic theft definition where Garcia-Martinez “pled
and was convicted while the old rule was extant.” Id. at 1296.
So too here. Petitioner twice pled guilty to shoplifting under a state statute
that does not require a permanent taking. The Arizona shoplifting statute provides
A. A person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, the person knowingly obtains such goods of another with the intent to deprive that person of such goods by:
4 1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or . . . .
ARIZ. REV. STAT. § 13-1805 (emphasis added).
“Deprive” means to withhold the property interest of another either permanently or for so long a time period that a substantial portion of its economic value or usefulness or enjoyment is lost, to withhold with the intent to restore it only on payment of any reward or other compensation or to transfer or dispose of it so that it is unlikely to be recovered.
ARIZ. REV. STAT. § 13-1801(A)(4) (emphasis added). Arizona courts have
recognized that shoplifting under § 13-1805(A) does not require an intent
permanently to deprive. See, e.g., Bosworth v. Anagnost, 323 P.3d 736, 739–40
(Ariz. Ct. App. 2014); Sulavka v. State, 221 P.3d 1022, 1025–26 (Ariz Ct. App.
2009). This case is on all fours with Garcia-Martinez. Because Arizona’s
shoplifting statute does not require a permanent taking, it was not a “crime
involving moral turpitude” under BIA precedent at the time Petitioner committed
the offenses and pled guilty.
The government urges us to distinguish Garcia-Martinez on the grounds that
BIA precedent differentiates between retail theft and other kinds of theft, holding
5 that for retail theft convictions, like the Petitioner’s, intent permanently to deprive
may be presumed. See, e.g., Matter of Jurado, 24 I. & N. Dec. 29, 33–34 (B.I.A.
2006). That argument ignores the fact that Diaz-Lizarraga announced the BIA’s
new rule in the context of a retail theft statute, not a general theft statute. Indeed,
Diaz-Lizarraga addressed the statute at issue in this case: Arizona shoplifting under
ARIZ. REV. STAT. § 13-1805(A). 26 I. & N. Dec. at 852 (“we now update our
existing jurisprudence and hold that the Arizona shoplifting statute at section 13-
1805(A) defines a categorical crime involving moral turpitude despite the fact that
it does not require the accused to intend a literally permanent taking.”). Had the
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FILED NOT FOR PUBLICATION JUN 01 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO NAVA ROMERO, AKA Nos. 16-73655 Antonio Nava, AKA Antonio E. Nava 17-70848 Romero, Agency No. A044-099-246 Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 9, 2018 San Francisco, California
Before: D.W. NELSON, KLEINFELD, and W. FLETCHER, Circuit Judges.
Petitioner seeks review of the Board of Immigration Appeals’ determination
that his two convictions for shoplifting under Arizona law, A RIZ. REV. STAT. § 13-
1805(A)(1), categorically constitute “crimes involving moral turpitude” under the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii). As in Garcia-
Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018), the Petitioner’s state
convictions did not constitute “crimes involving moral turpitude” under BIA
precedent at the time he committed them. Id. at 1294. The BIA modified its
generic definition of theft “crimes involving moral turpitude” to include Arizona
shoplifting after the Petitioner’s conduct and after his guilty pleas. See Matter of
Diaz-Lizarraga, 26 I. & N. Dec. 847, 849, 852–54 (B.I.A. 2016). We conclude, as
we did in Garcia-Martinez, that the BIA erred in determining that Petitioner’s
offenses were “crimes involving moral turpitude” under its earlier precedent, and
that the BIA’s new generic definition, announced in Diaz-Lizarraga, does not apply
retroactively to the Petitioner’s convictions. We grant the petition and remand to
the BIA for proceedings consistent with this disposition.
In Garcia-Martinez, the petitioner had pled guilty to multiple theft offenses
under Oregon law. 886 F.3d at 1293. We analyzed the Oregon theft statutes and
determined that the “statutory scheme does not require a permanent taking of the
property in question[.]” Id. at 1294. We noted that “for many decades (at least
since 1947)[,] the BIA had held that ‘a theft offense categorically involves moral
turpitude if—and only if—it is committed with the intent to permanently deprive
2 an owner of property.’ ” Id. Our precedent recognized the same distinction.
Almanza-Arenas v. Lynch, 815 F.3d 469, 476 (9th Cir. 2016) (en banc). Thus, we
concluded, Garcia-Martinez’s theft offenses were not categorically “crimes
involving moral turpitude” at the time he committed them. Garcia-Martinez, 886
F.3d at 1294. The BIA has confirmed our interpretation of its earlier precedent.
Diaz-Lizarraga, 26 I. & N. Dec. at 849.
After Garcia-Martinez pled guilty to theft, and after the Petitioner in this
case pled guilty to shoplifting, the BIA modified its generic definition of theft
“crimes involving moral turpitude.” Id. at 849–52. Casting aside its old rule on
the grounds that “antiquity of our case law is not a sound reason for continuing to
adhere to it,” the BIA“update[d]” its jurisprudence, “overrul[ing]” its earlier
decisions. Id. at 852–55. Instead of requiring an “intent to permanently deprive an
owner of property,” id. at 849, the BIA now holds that theft offenses categorically
constitute “crimes involving moral turpitude” if they require “an intent to deprive
the owner of his property either permanently or under circumstances where the
owner’s property rights are substantially eroded.” Id. at 853 (emphasis added).
3 Recognizing that Diaz-Lizarraga “abrupt[ly] change[d] . . . the law,” we
answered in Garcia-Martinez the question that faces us here: whether prior theft
offenses can constitute “crimes involving moral turpitude” when, under BIA
precedent at the time they were committed, they were not. 886 F.3d at 1295. We
reasoned that although “the BIA can change its rules retroactively through
adjudication, . . . that authority is not unconstrained. Rather, we must balance the
reliance interest of those to whom the new rule will be applied against the
mischief, if any, that would be caused if the rule is not so applied.” Id. Applying
that reasoning, we found that the balance of interests “weigh[ed] heavily in
Garcia’s favor[,]” id., and we held that “basic fairness” prevented retroactive
application of the BIA’s new generic theft definition where Garcia-Martinez “pled
and was convicted while the old rule was extant.” Id. at 1296.
So too here. Petitioner twice pled guilty to shoplifting under a state statute
that does not require a permanent taking. The Arizona shoplifting statute provides
A. A person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, the person knowingly obtains such goods of another with the intent to deprive that person of such goods by:
4 1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or . . . .
ARIZ. REV. STAT. § 13-1805 (emphasis added).
“Deprive” means to withhold the property interest of another either permanently or for so long a time period that a substantial portion of its economic value or usefulness or enjoyment is lost, to withhold with the intent to restore it only on payment of any reward or other compensation or to transfer or dispose of it so that it is unlikely to be recovered.
ARIZ. REV. STAT. § 13-1801(A)(4) (emphasis added). Arizona courts have
recognized that shoplifting under § 13-1805(A) does not require an intent
permanently to deprive. See, e.g., Bosworth v. Anagnost, 323 P.3d 736, 739–40
(Ariz. Ct. App. 2014); Sulavka v. State, 221 P.3d 1022, 1025–26 (Ariz Ct. App.
2009). This case is on all fours with Garcia-Martinez. Because Arizona’s
shoplifting statute does not require a permanent taking, it was not a “crime
involving moral turpitude” under BIA precedent at the time Petitioner committed
the offenses and pled guilty.
The government urges us to distinguish Garcia-Martinez on the grounds that
BIA precedent differentiates between retail theft and other kinds of theft, holding
5 that for retail theft convictions, like the Petitioner’s, intent permanently to deprive
may be presumed. See, e.g., Matter of Jurado, 24 I. & N. Dec. 29, 33–34 (B.I.A.
2006). That argument ignores the fact that Diaz-Lizarraga announced the BIA’s
new rule in the context of a retail theft statute, not a general theft statute. Indeed,
Diaz-Lizarraga addressed the statute at issue in this case: Arizona shoplifting under
ARIZ. REV. STAT. § 13-1805(A). 26 I. & N. Dec. at 852 (“we now update our
existing jurisprudence and hold that the Arizona shoplifting statute at section 13-
1805(A) defines a categorical crime involving moral turpitude despite the fact that
it does not require the accused to intend a literally permanent taking.”). Had the
BIA’s precedent made it clear that Arizona retail theft categorically constituted a
“crime involving moral turpitude,” there would have been no reason for the BIA,
in addressing Arizona shoplifting, to “update [its] existing jurisprudence” and
“overrule[]” its decisions to the contrary. Id. at 852, 855. Instead, as we
recognized in Garcia-Martinez, “the BIA did not overturn the requirement that a
taking must be literally permanent until Diaz-Lizarraga itself.” 886 F.3d at 1295.
The government argues in the alternative that we should apply the BIA’s
new rule from Diaz-Lizarraga retroactively. For the reasons set forth in Garcia-
Martinez, we decline to do so. See id. at 1295–96. The BIA’s new rule is an
6 abrupt about-face from the BIA’s (and this court’s) longstanding generic definition
of theft crimes involving moral turpitude. If applied retroactively to the
Petitioner’s shoplifting convictions, it would impose a new and severe penalty that
he could not have anticipated when he committed the offenses or when he pled
guilty to them.
Because we grant Petitioner the relief that he seeks, we do not address his
other arguments. His counsel made a compelling argument for holding that the
statutory phrase “crime involving moral turpitude” is unconstitutionally vague.
See, e.g., Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en
banc) (noting that “ ‘moral turpitude’ is perhaps the quintessential example of an
ambiguous phrase”); see also Arias v. Lynch, 834 F.3d 823, 830, 835 (7th Cir.
2016) (Posner, J., concurring) (noting that the phrase is “stale, antiquated, . . .
meaningless[,]” “vague[], rife with contradiction, a fossil, [and] an embarrassment
to a modern legal system”). The Supreme Court held to the contrary almost three
quarters of a century ago, in Jordan v. De George, 341 U.S. 223, 231–232 (1951),
but language, usage, and cultural norms may have changed since then. Our more
modest disposition makes it unnecessary to address the question.
7 The petition is GRANTED and the matter REMANDED to the BIA for
proceedings consistent with this disposition.