FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MANUEL JESUS OLIVAS-MOTTA, No. 14-70543 AKA Manuel Jesus Olivas-Notta, Petitioner, Agency No. A021-179-705 v. MATTHEW G. WHITAKER, Acting OPINION Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted September 10, 2018 San Francisco, California Filed December 19, 2018 Before: J. Clifford Wallace, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges. Opinion by Judge Wallace; Dissent by Judge Watford 2 OLIVAS-MOTTA V. WHITAKER SUMMARY * Immigration The panel denied Manuel Jesus Olivas-Motta’s petition for review of a decision of the Board of Immigration Appeals that found him removable for having committed two crimes involving moral turpitude. Olivas-Motta, a lawful permanent resident, was placed in removal proceedings based on his convictions for felony endangerment under Arizona Revised Statutes § 13-1201 and facilitation to commit unlawful possession of marijuana for sale. The immigration judge concluded (and the parties did not dispute before this court) that the facilitation offense was a crime involving moral turpitude. The immigration judge and Board determined that felony endangerment was neither categorically a crime involving moral turpitude nor a crime involving moral turpitude under the modified categorical approach, but examined evidence beyond the record of conviction and found the offense involved moral turpitude. While Olivas-Motta’s petition for review was pending before this court, the Board published In re Leal, 26 I. & N. Dec. 20 (B.I.A. 2012) (Leal I), which held that felony endangerment under Arizona Revised Statutes § 13-1201 was categorically a crime involving moral turpitude, and this court upheld that determination in Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014) (Leal II). Because the Board had not * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. OLIVAS-MOTTA V. WHITAKER 3 decided Olivas-Motta’s appeal on the ground that his offense was categorically a crime involving moral turpitude, this court did not consider Leal I’s relevance to Olivas-Motta’s petition, but granted the petition and remanded because an immigration judge and the Board are confined to the record of conviction in this context. On remand, the Board dismissed Olivas-Motta’s appeal, applying Leal I to conclude that felony endangerment was categorically a CIMT. The panel rejected Olivas-Motta’s argument that Leal II was wrongly decided, explaining that the panel has no power to overrule circuit precedent. The panel also rejected Olivas-Motta’s argument that the Board’s application of Leal I was impermissibly retroactive. Concluding that a change in law must have occurred before this court’s retroactivity analysis from Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), is implicated, the panel held that Montgomery Ward is only applicable when an agency consciously overrules or otherwise alters its own rule or regulation, or expressly considers and openly departs from a circuit court decision. Applying this standard to Olivas-Motta’s case, the panel concluded that there was no change in law raising retroactivity ...
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