Antonio Nava Romero v. Jefferson Sessions

FILED NOT FOR PUBLICATION JUN 01 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANTONIO NAVA ROMERO, AKA Nos. 16-73655 Antonio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,” ...

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