Jose Garcia-Martinez v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE MARIA GARCIA-MARTINEZ, No. 16-72940 Petitioner, Agency No. v. A091-071-827 JEFFERSON B. SESSIONS III, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 15, 2018 San Francisco, California Filed April 9, 2018 Before: Ferdinand F. Fernandez, M. Margaret McKeown, and Julio M. Fuentes,* Circuit Judges. Opinion by Judge Fernandez * The Honorable Julio M. Fuentes, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. 2 GARCIA-MARTINEZ V. SESSIONS SUMMARY** Immigration The panel granted Jose Maria Garcia-Martinez’s petition for review of a decision of the Board of Immigration Appeals, holding that the BIA erred in concluding that Garcia’s Oregon theft convictions were crimes involving moral turpitude, and remanded. Garcia was a lawful permanent resident at the time of his convictions, and the BIA found him removable, under 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. The panel noted that the Oregon theft offenses for which Garcia was convicted did not require a permanent taking of property. Therefore, the panel concluded that, at the time Garcia committed the offenses, they were not crimes involving moral turpitude because for many decades the BIA had required a permanent intent to deprive in order for a theft offense to be a crime involving moral turpitude. The panel observed that in In re Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016), the BIA changed the law by no longer requiring a permanent intent to deprive in this context. However, the panel rejected the government’s argument that this new rule should be applied retroactively to Garcia, concluding that the balance of retroactivity factors weighed ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GARCIA-MARTINEZ V. SESSIONS 3 heavily in his favor: 1) this was not a case of first impression; 2) the decision to abandon the literally-permanent deprivation test was a rather abrupt change in the law; 3) an alien in Garcia’s position would rely on the BIA’s prior rule; and 4) the new rule would impose a new and severe burden upon Garcia, who would be removed from this country and his family after living here for over thirty years. Accordingly, the panel concluded that Garcia’s removal order must be set aside. COUNSEL Lochlan F. Shelfer (argued) and Jeremy M. Christiansen, Gibson Dunn & Crutcher LLP, Washington, D.C., for Petitioner. Imran R. Zaidi (argued), Trial Attorney; Julie M. Iversen, Senior Litigation Counsel; Stephen J. Flynn, Assistant Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. Jennifer Lee Koh, Immigration Clinic, Western State College of Law, Irvine, California; Kari Hong, Ninth Circuit Appellate Program, Boston College Law ...

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