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 MERRICK B. GARLAND, Attorney General, Respondent. ORDER AND OPINION On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 16, 2020* San Francisco, California Filed March 30, 2021 Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Ivan L.R. Lemelle, District Judge.** * 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. GARLAND Order; Opinion by Judge Ikuta; Concurrence by Judge Berzon SUMMARY*** Immigration The panel filed: 1) an order withdrawing the opinion and concurring opinion appearing at 965 F.3d 724 (9th Cir. 2020), denying the petition for rehearing en banc as moot, and providing that the parties may file petitions for rehearing and hearing en banc in response to the new opinion; 2) a new opinion denying Joel Empleo Silva’s petitions for review of decisions of the Board of Immigration Appeals; and 3) a new concurring opinion. In the new opinion, the panel held that the BIA did not err in concluding that 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. Based on this court’s binding precedent, the panel concluded that a violation of section 484(a) constitutes a crime involving moral turpitude. In outlining the relevant background, the panel observed that the BIA did not conclusively hold that a theft offense may involve moral turpitude even if it does not require the accused to intend a *** 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. GARLAND 3 literally permanent taking until Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016), and that this court subsequently concluded, in Garcia-Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018), that the new rule announced in Diaz-Lizarraga did not apply retroactively to the petitioner in that case. The panel first considered whether the BIA’s decision in this case would be correct even if the new rule in Diaz- Lizarraga did not apply retroactively to Silva. Accordingly, the panel addressed whether section 484(a) was an offense involving moral turpitude under the law as it existed before Diaz-Lizarraga, observing that the California Supreme Court, in People v. Avery, 27 Cal. 4th 49 (2002), 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, both …
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