FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOEL EMPLEO SILVA, Nos. 16-70130 Petitioner, 17-73272 v. Agency No. A045-476-155 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 16, 2020* San Francisco, California Filed July 10, 2020 Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Ivan L.R. Lemelle, District Judge.** Opinion by Judge Ikuta; Concurrence by Judge Berzon * The panel unanimously concludes this case is suitable for decision without oral argument, and the case is therefore submitted on the briefs as of April 16, 2020. See Fed. R. App. P. 34(a)(2). ** The Honorable Ivan L.R. Lemelle, United States District Judge for the Eastern District of Louisiana, sitting by designation. 2 SILVA V. BARR SUMMARY*** Immigration Denying Joel Empleo Silva’s petitions for review of decisions of the Board of Immigration Appeals, the panel concluded that Silva’s conviction for petty theft under section 484(a) of the California Penal Code is a crime involving moral turpitude, and that the BIA did not abuse its discretion in denying Silva’s motion to reopen to seek asylum and related relief based on changed country conditions in the Philippines. Silva was convicted of violating section 484(a) of the California Penal Code in 1998, 2004, and 2007. Addressing the BIA’s interpretation of crimes involving moral turpitude, the panel observed that, prior to 2016, the BIA had held that a theft offense did not categorically involve moral turpitude unless it involved a permanent taking, as distinguished from a temporary one. However, in Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016), the BIA held that a theft offense may involve moral turpitude despite the fact that it does not require the accused to intend a literally permanent taking. This court subsequently held in Garcia-Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018), that the BIA’s new rule would not apply to persons who were convicted before November 16, 2016, the date on which the BIA issued Matter of Diaz-Lizarraga. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SILVA V. BARR 3 Addressing the elements of Silva’s conviction, the panel observed that, in People v. Davis, 19 Cal. 4th 301 (1998), the California Supreme Court explained in dicta that section 484(a) includes the intent to deprive the owner permanently of possession of the property, but the word permanently should not be taken literally, and temporary takings could amount to theft in some circumstances. In People v. Avery, 27 Cal. 4th 49 (2002), the California Supreme Court definitively held that a person could be convicted under section 484(a) even if that person did not intend to effect a literally permanent taking of property. The panel explained that, if it were writing on a clean slate, the categorical analysis would proceed as follows. Silva was convicted of violating section 484(a) in 1998, ...
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