Julio Fernandez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2020
• Docket: 17-71969
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

JULIO CESAR FERNANDEZ, AKA Julio No. 17-71969 Cesar-Magana, AKA Julio Cesar Fernandez- Magana, Agency No. A095-588-425

Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent.

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

Argued and Submitted December 9, 2019 Pasadena, California

Before: BEA, COLLINS, and BRESS, Circuit Judges.

Julio Cesar Fernandez, a native and citizen of Mexico, petitions for review

of an order of the Board of Immigration Appeals (“BIA”) affirming the

determination of an Immigration Judge (“IJ”) that Fernandez is ineligible for

cancellation of removal. We have jurisdiction under § 242 of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1252, and we deny the petition.

On remand from this court in connection with Fernandez’s prior petition for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. review, the BIA in 2017 upheld the IJ’s 2011 determination that Fernandez’s 1998

conviction for aggravated assault in violation of California Penal Code § 245(a)(1)

is a “crime involving moral turpitude” that rendered Fernandez ineligible for

cancellation of removal under INA § 240A(b)(1)(C). See 8 U.S.C.

§ 1229b(b)(1)(C); see also id. § 1182(a)(2)(A)(i)(I). In reaching this conclusion,

the BIA relied on its then-recent published decision in Matter of Wu, 27 I. & N.

Dec. 8 (BIA 2017), which held that the pre-2012 version of California Penal Code

§ 245(a)(1) under which Fernandez was convicted was categorically a crime

involving moral turpitude. At oral argument, Fernandez agreed that Matter of Wu

would be entitled to deference under Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984), and in any event, we have expressly so held in

Safaryan v. Barr, ___ F.3d ___, No. 16-74039 (9th Cir. Sept. 17, 2020).

Fernandez nonetheless contends that the BIA’s application of Matter of Wu to his

case is impermissibly retroactive. We disagree.

To determine whether an agency’s adjudicatory decision may be applied

retroactively, we generally consider the following five factors:

(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.

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

and internal quotation marks omitted). We have held that the first factor, which “is

meant to ensure that the party responsible for a change in law receives the benefits

of the new rule,” is “less relevant” in “the immigration context, in which the

government is always a party.” Acosta-Olivarria v. Lynch, 799 F.3d 1271, 1275

(9th Cir. 2015). Consideration of the remaining factors favors retroactive

application of Matter of Wu in this case.

In analyzing these factors, Fernandez relies heavily on the fact that, shortly

before his offense and conviction under § 245(a)(1), we had held that a different

subsection of § 245—namely, § 245(a)(2), involving assault with a firearm—was

not a crime involving moral turpitude. Carr v. INS, 86 F.3d 949, 951 (9th Cir.

1996). But as we noted in Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en

banc), Carr inexplicably (and perhaps unwittingly) departed from long-established,

binding Ninth Circuit authority holding that § 245 as a whole “‘per se’ involves

moral turpitude.” Id. at 780 (quoting Gonzales v. Barber, 207 F.2d 398, 400 (9th

Cir. 1953), aff’d on other grounds, 347 U.S. 637 (1954)). As we explained, no

“intervening precedent between Barber and Carr” justified Carr’s failure to follow

Barber. Id. at 782. Nonetheless, surveying the substantially changed state of the

law as of 2014, we overruled both Barber and Carr, thereby wiping the slate clean

3 for the BIA to re-examine the issue. Id. at 781–82. The BIA subsequently did so

in Matter of Wu.

Against this backdrop, we conclude that the Montgomery Ward factors

strongly favor retroactive application of Matter of Wu to Fernandez’s case. Given

the obvious conflict between Barber and Carr, the relevant law in this area was at

best unsettled and the BIA’s decision in Matter of Wu was not a sharp departure

from settled law (factor (2)). Garfias-Rodriguez v. Holder, 702 F.3d 504, 521 (9th

Cir. 2012) (en banc) (no impermissible retroactivity “if a party could reasonably

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

a complete surprise’”) (citation omitted). For the same reasons, Fernandez could

not have placed much reliance on the hope that the uncertainty would be resolved

in favor of the view that § 245(a)(1) was not a crime involving moral turpitude

(factor (3)). Indeed, Fernandez points to no decision from this court or the BIA

which had ever held that § 245(a)(1) is not a crime involving moral turpitude.

Moreover, failure to apply Matter of Wu here would undermine the interest

in uniform application of the law (factor (5)). Garfias-Rodriguez, 702 F.3d at 523

(where new decision resolves prior ambiguity, this factor leans in favor of the

Government, “because non-retroactivity impairs the uniformity of a statutory

scheme, and the importance of uniformity in immigration law is well established”).

In this regard, it is notable that our decision in Ceron, in remanding the same issue

4 of § 245(a)(1)’s classification to the BIA, expressly contemplated that the resulting

decision would be applied in Ceron’s case, see 747 F.3d at 785, and in that sense it

would be inconsistent with Ceron to decline to apply Matter of Wu here.

Although removal is always a “substantial burden” (factor (4)), Szonyi v.

Whitaker, 915 F.3d 1228, 1236 (9th Cir. 2019) (internal quotation marks and

citation omitted), the combined weight of the other considerations warrants

application of Matter of Wu in resolving Fernandez’s case. See, e.g., id.

(permitting retroactive application based on a comparable balance of factors);

Garfias-Rodriguez, 702 F.3d at 523 (same).

Accordingly, we DENY the petition for review.