FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FELIPE CRUZ BETANSOS, No. 15-72347 Petitioner, Agency No. v. A077-310-010 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 12, 2018 Pasadena, California Filed July 5, 2019 Before: Carlos T. Bea and Mary H. Murguia, Circuit Judges, and Stanley Allen Bastian, * District Judge. Opinion by Judge Murguia; Concurrence by Judge Murguia * The Honorable Stanley Allen Bastian, United States District Judge for the Eastern District of Washington, sitting by designation. 2 BETANSOS V. BARR SUMMARY ** Immigration Denying Felipe Cruz Betansos’s petition for review of a decision of the Board of Immigration Appeals, the panel deferred to the BIA’s decision in Matter of Cortes Medina that a conviction for indecent exposure under California Penal Code § 314(1) is categorically a crime involving moral turpitude (“CIMT”) and held that Cortes Medina applied retroactively to Betansos’s case such that his § 314(1) conviction was a CIMT that made him ineligible for cancellation of removal. In concluding that Betansos’s indecent exposure conviction under § 314(1) was a CIMT, the BIA relied on its published decision in Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013). However, the BIA’s decision in Cortes Medina contradicted this court’s earlier decision, Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), in which the court held that indecent exposure under § 314(1) was not categorically a CIMT. In Nunez, the court determined that the BIA’s unpublished decision did not merit deference and adopted a definition of moral turpitude that required the infliction of harm or the involvement of a protected class. In Cortes Medina, the BIA disagreed with Nunez’s generic definition as being too narrow, concluding that the defining characteristic of a CIMT in the indecent exposure context is whether the offense includes “lewd intent.” ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BETANSOS V. BARR 3 The panel concluded that it must defer to Cortes Medina under National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005). The panel noted that, unlike in Nunez, the BIA in Cortes Medina presented analysis explaining how it arrived at its generic definition of moral turpitude and explained why violations of § 314(1) are a categorical match to that generic definition. Because Cortes Medina did not misrepresent the authorities it relied on, it relied on published BIA authority, and its analysis was reasoned and thorough, the panel concluded that it could not say that the BIA’s decision was unreasonable. Applying the five-factor retroactivity framework from Montgomery Ward &. Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), the panel also concluded that Cortes Medina applied retroactively to Betansos. The panel concluded that the first factor was not in play in this case, and that the fourth factor—the burden imposed ...
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