Gutierrez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 2, 2023
• Docket: 22-797
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 2 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JULIAN GUTIERREZ, No. 22-797 Agency No. Petitioner, A087-310-749 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted September 11, 2023 Pasadena, California

Before: M. SMITH, FRIEDLAND, and MILLER, Circuit Judges.

Julian Gutierrez, a native and citizen of Mexico, petitions for review of a

decision of the Board of Immigration Appeals dismissing his appeal of an

immigration judge’s decision denying his application for cancellation of

removal. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

“Whether a new agency interpretation may be applied retroactively is a

question of law,” which we review de novo. Olivas-Motta v. Whitaker, 910 F.3d

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1271, 1275 (9th Cir. 2018). “A due process challenge in an immigration

proceeding is reviewed de novo.” Arizmendi-Medina v. Garland, 69 F.4th 1043,

1047 (9th Cir. 2023).

1. The Board’s decision in Matter of Wu—holding that assault with a

deadly weapon under California Penal Code section 245(a)(1) is categorically a

crime involving moral turpitude—applies retroactively to Gutierrez. 27 I. & N.

Dec. 8, 9 (B.I.A. 2017). To determine whether an adjudicatory decision by an

agency has retroactive effect, we apply the multi-factor balancing test laid out in

Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982).

See Lemus v. Lynch, 842 F.3d 641, 649 (9th Cir. 2016). Under that test, the

court considers “(1) whether the particular case is one of first impression, (2)

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, (3) the

extent to which the party against whom the new rule is applied relied on the

former rule, (4) the degree of the burden which a retroactive order imposes on a

party, and (5) the statutory interest in applying a new rule despite the reliance of

a party on the old standard.” Montgomery Ward, 691 F.2d at 1333 (quoting

Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir.

1972)).

The first factor favors neither party. Acosta-Olivarria v. Lynch, 799 F.3d

1271, 1275 (9th Cir. 2015). That factor was “meant to ensure that the party

responsible for a change in law receives the benefits of the new rule,” but in the

2 22-797 immigration context, where the government is always a party, “this concern is

less relevant.” Id. (citing Garfias-Rodriguez v. Holder, 702 F.3d 504, 521 (9th

Cir. 2012) (en banc)).

The second and third factors favor retroactivity. Those factors “are

closely intertwined” and “will favor retroactivity if a party could reasonably

have anticipated the change in the law such that the new ‘requirement would not

be a complete surprise.’” Garfias-Rodriguez, 702 F.3d at 521 (quoting

Montgomery Ward, 691 F.2d at 1333–34). For Gutierrez, the rule announced in

Wu could not have been a complete surprise. In 2011, when Gutierrez pleaded

nolo contendere to assault with a deadly weapon, it was unclear whether that

offense was a crime involving moral turpitude, with conflicting precedents

pointing in different directions. Compare Gonzales v. Barber, 207 F.2d 398,

400 (9th Cir. 1953) (holding that assault with a deadly weapon under California

law is, “per se,” a crime involving moral turpitude), overruled by Ceron v.

Holder, 747 F.3d 773, 781 (9th Cir. 2014) (en banc), with Carr v. INS, 86 F.3d

949, 951 (9th Cir. 1996) (holding that assault with a firearm under California

Penal Code section 245(a)(2) is not a crime involving moral turpitude),

overruled by Ceron, 747 F.3d at 782. Wu simply settled this open question.

The fourth factor weighs against retroactivity, for “deportation alone is a

substantial burden that weighs against retroactive application of an agency

adjudication.” Garfias-Rodriguez, 702 F.3d at 523 (quoting Miguel-Miguel v.

Gonzales, 500 F.3d 941, 952 (9th Cir. 2007)).

3 22-797 Finally, the fifth factor favors retroactivity, “because non-retroactivity

impairs the uniformity of a statutory scheme, and the importance of uniformity

in immigration law is well established.” Garfias-Rodriguez, 702 F.3d at 523.

Overall, the Montgomery Ward factors weigh in favor of applying Wu to

Gutierrez retroactively. And under Wu, Gutierrez has been convicted of a crime

involving moral turpitude, rendering him ineligible for cancellation of removal.

27 I. & N. Dec. at 9; see 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C).

Gutierrez argues that this case is analogous to Garcia-Martinez v.

Sessions, in which we held that a new decision by the Board could not be

applied retroactively to the petitioner. 886 F.3d 1291, 1296 (9th Cir. 2018). But

at the time the petitioner in Garcia-Martinez pleaded guilty to the crime at issue

in that case, the Board’s long-settled rule established that his crime was not one

involving moral turpitude. Id. at 1295–96. No precedents had clearly held

otherwise. Id. at 1296. Garcia-Martinez is therefore not on point.

2. The agency did not violate Gutierrez’s due process rights. For there to

have been a due process violation, “the proceeding [must have been] so

fundamentally unfair that the alien was prevented from reasonably presenting

his case.” Zetino v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010) (quoting

Ibarra–Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006)). Gutierrez argues

that he was denied due process when, on November 7, 2018, the immigration

judge did not grant him a continuance to prepare an application for adjustment

of status. But Gutierrez’s counsel did not ask for a continuance. Nor did he

4 22-797 object to the immigration judge’s conclusion that Gutierrez was ineligible for

adjustment of status based on prior concessions that he had entered the United

States without inspection. Gutierrez therefore has not identified any

fundamental unfairness in his proceeding.

The motions to stay removal (Dkt. Nos. 3, 8) are denied. The temporary

stay of removal is lifted upon issuance of the mandate.

PETITION DENIED.

5 22-797