Joel Silva v. William Barr ( 2020 )

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
WILLIAM P. BARR, Attorney
General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 16, 2020*
San Francisco, California
Filed July 10, 2020
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
Judges, and Ivan L.R. Lemelle, District Judge.**
Opinion by Judge Ikuta;
Concurrence by Judge Berzon
*
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. BARR
SUMMARY***
Immigration
Denying Joel Empleo Silva’s petitions for review of
decisions of the Board of Immigration Appeals, the panel
concluded that Silva’s conviction for 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.
Silva was convicted of violating section 484(a) of the
California Penal Code in 1998, 2004, and 2007. Addressing
the BIA’s interpretation of crimes involving moral turpitude,
the panel observed that, prior to 2016, the BIA had held that
a theft offense did not categorically involve moral turpitude
unless it involved a permanent taking, as distinguished from
a temporary one. However, in Matter of Diaz-Lizarraga,
26 I. & N. Dec. 847 (BIA 2016), the BIA held that a theft
offense may involve moral turpitude despite the fact that it
does not require the accused to intend a literally permanent
taking. This court subsequently held in Garcia-Martinez v.
Sessions, 886 F.3d 1291 (9th Cir. 2018), that the BIA’s new
rule would not apply to persons who were convicted before
November 16, 2016, the date on which the BIA issued Matter
of Diaz-Lizarraga.
***
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. BARR 3
Addressing the elements of Silva’s conviction, the panel
observed that, in People v. Davis, 19 Cal. 4th 301 (1998), the
California Supreme Court explained in dicta that section
484(a) includes the intent to deprive the owner permanently
of possession of the property, but the word permanently
should not be taken literally, and temporary takings could
amount to theft in some circumstances. In People v. Avery,
27 Cal. 4th 49 (2002), the California Supreme Court
definitively 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, if it were writing on a clean
slate, the categorical analysis would proceed as follows.
Silva was convicted of violating section 484(a) in 1998, 2004,
and 2007. According to Garcia-Martinez, at those times, the
BIA’s generic definition of a theft offense involving moral
turpitude required the intent to permanently deprive the
owner of the property. But by 1998, under Davis, it was
questionable whether a violation of section 484(a) required
that the offender intend a literally permanent deprivation of
property, and by 2004, under Avery, it was clear that section
484(a) did not require such an intent. Therefore, at the time
of at least two of Silva’s offenses, section 484(a) criminalized
more conduct than the BIA’s generic theft offense involving
moral turpitude, and so the state statute did not categorically
define a crime involving moral turpitude. Thus, Silva would
not be removable under 8 U.S.C. § 1227(a)(2)(A)(ii) because
he was not convicted of two or more crimes involving moral
turpitude.
However, the panel pointed out that it was not writing on
a clean slate, and that both before and after Avery, this court
held that section 484(a) was a crime involving moral
4 SILVA V. BARR
turpitude. The panel noted that Garcia-Martinez put those
earlier opinions in question because they failed to analyze the
potential distinction between the intent requirement in section
484(a) and the BIA’s articulation of the intent required before
Matter of Diaz Lizarraga. However, the panel concluded that
it was nevertheless bound by circuit precedent. The panel
explained that in this circuit, a three-judge panel must apply
binding precedent even when it is clearly wrong because, for
example, it failed to recognize an intervening change in the
law. The panel noted that only an en banc court has the
power to fix such errors. The panel further explained that a
three-judge panel can reconsider the law of the circuit only
when the relevant court of last resort has undercut the theory
or reasoning underlying the prior circuit precedent in such a
way that the cases are clearly irreconcilable, or when a three-
judge panel must follow an agency construction entitled to
deference under Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967 (2005), neither of which apply
here. The panel therefore held that Silva’s three separate
violations of section 484(a) constitute crimes involving moral
turpitude.
Turning to Silva’s motion to reopen, the panel held that
the BIA did not abuse its discretion in denying Silva’s motion
to reopen because he failed to establish prima facie eligibility
for asylum and related relief based on changed country
conditions. Silva sought to reopen proceedings based on his
history of drug use and his fear of persecution or torture
under Philippine President Rodrigo Duterte’s anti-drug
program. The panel noted that Silva did not contend that he
suffered past persecution, and merely speculated that
someone in the Philippines could report his past drug use to
the government, or that he might succumb to the temptation
to begin using drugs again. Because Silva failed to submit
SILVA V. BARR 5
any specific evidence that such events might occur, the panel
held that Silva failed to establish prima facie eligibility for
relief.
Judge Berzon concurred in the majority opinion in full,
but wrote separately to reiterate her view that the phrase
“crime involving moral turpitude” is unconstitutionally
vague.
COUNSEL
Francisco Miguel Ugarte, Office of the Public Defender, San
Francisco, California, for Petitioner.
Joseph H. Hunt, Assistant Attorney General; Song Park and
Papu Sandhu, Acting Assistant Directors; Christina P. Greer,
Trial Attorney; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
IKUTA, Circuit Judge:
Under our precedent, petty theft under section 484(a) of
the California Penal Code is a crime involving moral
turpitude. See, e.g., Castillo-Cruz v. Holder, 581 F.3d 1154,
1160 (9th Cir. 2009). Although we question whether this
precedent was correctly decided, we have no authority to
revisit it here. We also hold that the Board of Immigration
Appeals (BIA) did not abuse its discretion in denying the
petitioner’s motion to reopen.
6 SILVA V. BARR
I
Joel Empleo Silva was admitted to the United States as a
lawful permanent resident on June 27, 1996. After
admission, Silva was convicted of petty theft offenses under
the California Penal Code on three separate occasions: in
1998, he was convicted of petty theft in violation of sections
484(a) and 490.5,1 and in 2004 and 2007, he was convicted of
petty theft with a prior theft conviction in violation of
sections 484(a) and 666.2 Silva was also convicted of
attempted theft in violation of section 664 in 2000.
In May 2015, the Department of Homeland Security
charged Silva as removable for having been “convicted of
two or more crimes involving moral turpitude,” 8 U.S.C.
1
Section 484(a) states, in pertinent part, “Every person who shall
feloniously steal, take, carry, lead, or drive away the personal property of
another . . . is guilty of theft.” Cal. Pen. Code § 484(a). Section 484(a)
encompasses both petty and grand theft; the elements of petty theft are the
same as grand theft, apart from the amount or type of property taken. See
Cal. Pen. Code §§ 487, 488; United States v. Esparza-Ponce, 193 F.3d
1133, 1137 (9th Cir. 1999).
Section 490.5 prescribes the punishment for a “first conviction for
petty theft involving merchandise taken from a merchant’s premises.”
Cal. Pen. Code § 490.5. Silva was charged with stealing merchandise
from a J. C. Penney department store.
2
At all relevant times, section 666 allowed for heightened
punishments of persons convicted of petty theft after having served time
based on a prior petty theft conviction. See Cal. Penal Code § 666(effective Jan. 1, 2001 to Sep. 8, 2010).
SILVA V. BARR 7
§ 1227(a)(2)(A)(ii),3 referencing Silva’s three petty-theft
offenses and his attempted-theft conviction. An immigration
judge held that Silva was removable as charged.
In December 2015, the BIA dismissed Silva’s appeal. It
rejected Silva’s argument that a violation of section 484(a)
did not qualify as a crime involving moral turpitude because
the Ninth Circuit had “repeatedly held that it is.” The BIA
expressed no opinion on Silva’s argument that the phrase
“crimes involving moral turpitude” was unconstitutionally
vague, holding that it lacked jurisdiction to declare an act of
Congress unconstitutional. Silva petitioned for review.
While the petition was pending, Silva moved to reopen
proceedings in light of changed country conditions in the
Philippines, for the purpose of applying for asylum,
withholding of removal, and protection under the Convention
Against Torture (CAT). In his motion, Silva made the
following allegations. After Rodrigo Duterte was elected
president of the Philippines, he instituted an anti-drug
program that included an initiative called Oplan
Tokhang—roughly translated as “knock and plead”—which
focused on low-level sellers and users. Under Oplan
Tokhang, police and local officials visited the houses of
suspected drug sellers and users and demanded that they
cooperate with the police. Suspects who did not cooperate,
or who initially cooperated but then returned to using or
selling, were reportedly killed.
3
Section 1227(a)(2)(A)(ii) provides, “Any alien who at any time after
admission is convicted of two or more crimes involving moral turpitude,
not arising out of a single scheme of criminal misconduct, regardless of
whether confined therefor and regardless of whether the convictions were
in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii).
8 SILVA V. BARR
Silva also alleged that his history of drug use would put
him at risk if he returned to the Philippines. In a declaration
submitted with his motion to reopen, Silva testified that he
had regularly used methamphetamine while in the United
States from the late 1990s until 2015 and that he had used a
cheap form of the drug called “shabu” daily with friends and
neighbors when he returned to the Philippines for three
months in early 2000. After being taken into immigration
custody in May 2015, Silva stopped using drugs and has
continued to abstain from drug use after his release, even
though he had “been tempted many times by [a] friend.”
Despite abstaining from drugs, Silva claims that if he returns
to the Philippines, the people who knew him when he was
there in 2000 could “rat him out” to the police as a former
drug user. Further, Silva believes that “it will be very hard
for [him] to resist the temptation to start using shabu” in the
Philippines.
The BIA denied Silva’s motion to reopen. The BIA
reasoned that Silva had not shown that Filipino authorities
were aware or would become aware of his past drug use. Nor
had Silva shown that he would use drugs in the Philippines.
Therefore, the BIA held that Silva had not made out a prima
facie case for asylum, withholding of removal, or CAT
protection. Silva petitioned for review.
We consolidated Silva’s two pending petitions for review.
See 8 U.S.C. § 1252(b)(6). We have jurisdiction over both
petitions based on 8 U.S.C. § 1252(a)(1). See Mata v. Lynch,
576 U.S. 143, 147 (2015).4
4
Silva stated that the criminal-alien bar, 8 U.S.C. § 1252(a)(2)(C)—
which limits our jurisdiction “to review any final order of removal against
an alien who is removable by reason of having committed” various
SILVA V. BARR 9
II
We first turn to Silva’s petition for review of the BIA’s
December 2015 order of removal. On appeal, Silva argues
that he is not removable for having been convicted “of two or
more crimes involving moral turpitude,” 8 U.S.C.
§ 1227(a)(2)(A)(ii), because a violation of section 484(a) of
the California Penal Code does not involve moral turpitude.
To determine whether an alien’s crime of conviction
subjects the alien to removal under 8 U.S.C.
§ 1227(a)(2)(A)(ii), we apply the categorical approach set
forth in Taylor v. United States, 495 U.S. 575 (1990).
Marmolejo-Campos v. Holder, 558 F.3d 903, 912 (9th Cir.
2009) (en banc). That approach requires us to determine
“whether the crime of conviction contains all the elements of
the generic federal offense.” Renteria-Morales v. Mukasey,
551 F.3d 1076, 1081 (9th Cir. 2008).5
A
In making this determination, we begin by defining
the elements of the generic federal offense, id., in this
criminal offenses, including certain crimes involving moral turpitude—
applies here. It does not. Section 1252(a)(2)(C) applies to crimes
involving moral turpitude “for which a sentence of one year or longer
may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i)(II); see 8 U.S.C.
§ 1252(a)(2)(C). But Silva’s petty-theft convictions were not crimes for
which such a sentence may be imposed. Rusz v. Ashcroft, 376 F.3d 1182,
1185 (9th Cir. 2004).
5
Neither party argues that we should apply the modified categorical
approach here, see, e.g., Shepard v. United States, 544 U.S. 13, 26 (2005),
so we do not address that issue.
10 SILVA V. BARR
case, “crimes involving moral turpitude,” 8 U.S.C.
§ 1227(a)(2)(A)(ii). We “defer to the BIA’s articulation of
the generic federal definition ‘if the statute is silent’” and “the
BIA’s interpretation is ‘based on a permissible construction
of the statute.’” Renteria-Morales, 551 F.3d at 1081 (quoting
Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005)).
The BIA has defined the term “moral turpitude” as referring
to conduct that is “inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general.” Matter of Silva-
Trevino, 26 I. & N. Dec. 826, 833 (BIA 2016) (citation
omitted). The BIA has further explained that “[t]o involve
moral turpitude, a crime requires two essential elements:
reprehensible conduct and a culpable mental state.” Id. at 834
(citing Nino v. Holder, 690 F.3d 691, 695 (5th Cir. 2012)).
Although we have framed our definition of “moral turpitude”
in slightly different terms,6 it “does not differ materially from
the [BIA’s].” Marmolejo-Campos, 558 F.3d at 910 (citing
Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1058 n.9 (9th
Cir. 2006)). These definitions, however, are not helpful for
our task of identifying the elements of a generic “crime
involving moral turpitude” for purposes of the categorical
approach, because they fail “to ‘particularize’ the term in any
meaningful way.” Id.Given the difficulty of determining the elements of
“crimes involving moral turpitude” as opposed to determining
the elements of a specific criminal offense, the BIA has
adopted a different approach. Because the phrase “crimes
6
“[W]e have traditionally divided crimes involving moral turpitude
into two basic types: ‘those involving fraud and those involving grave
acts of baseness or depravity.’” Marmolejo-Campos, 558 F.3d at 910(quoting Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005)).
SILVA V. BARR 11
involving moral turpitude” refers to a category of crimes
rather than a specific offense with identifiable elements, cf.
8 U.S.C. § 1101(a)(43), the BIA has sensibly moved from
trying to define the phrase itself to instead giving examples of
the types of offenses that qualify as “crimes involving moral
turpitude,” see, e.g., Matter of Diaz-Lizarraga, 26 I. & N.
Dec. 847, 847 (BIA 2016). We have deferred to this
approach when articulated by the BIA in a published opinion.
Marmolejo-Campos, 558 F.3d at 910–11.
Using this method of interpretation, the BIA had
concluded that only certain theft offenses involve moral
turpitude. For purposes of the statutory section providing that
the term “aggravated felony” means, among other things, “a
theft offense (including receipt of stolen property),” 8 U.S.C.
§ 1101(a)(43)(G), the BIA has defined a generic “theft
offense” as one that involves: “[1] taking of property or an
exercise of control over property [2] without consent [3] with
the criminal intent to deprive the owner of rights and benefits
of ownership, even if such deprivation is less than total or
permanent.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189
(2007) (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th
Cir. 2006)). For purposes of defining “crimes involving
moral turpitude,” however, the BIA’s cases from the 1940s
indicated that only theft offenses which “by their nature
necessarily constitute theft or stealing as those offenses are
known at common law” would qualify, Matter of D-, 1 I. &
N. Dec. 143, 145 (BIA 1941), meaning that a theft offense
did not categorically involve moral turpitude unless it
“involve[d] a permanent taking as distinguished from a
temporary one,” Matter of H-, 2 I. & N. Dec. 864, 865 (BIA
1947); accord Matter of P-, 2 I. & N. Dec. 887, 887 (BIA
1947). At common law, however, there were certain
situations where persons were found guilty of larceny despite
12 SILVA V. BARR
not having intended a literally permanent deprivation of
property, see People v. Davis, 19 Cal. 4th 301, 308–15 (1998)
(collecting cases), and the BIA had not conclusively resolved
whether certain theft offenses could involve moral turpitude
even when a person did not intend a literally permanent
deprivation of property, see Matter of Jurado-Delgado, 24 I.
& N. Dec. 29, 33 (BIA 2006) (“We need not decide whether
the premise of the respondent’s argument is correct, i.e., that
if the offense required only an intent to temporarily deprive
the owner of the use or benefit of the property taken, the
crime would not be one of moral turpitude.”).
Against this backdrop, the BIA reexamined the elements
of a theft offense involving moral turpitude in Matter of Diaz-
Lizarraga. In doing so, the BIA explained that its “purpose
in adopting the ‘intent to permanently deprive’ requirement
was to distinguish between substantial and reprehensible
deprivations of an owner’s property on the one hand and, on
the other, mere de minimis takings in which the owner’s
property rights are compromised little, if at all.” Matter of
Diaz-Lizarraga, 26 I. & N. Dec. at 850. Since its early
decisions, the BIA observed, criminal law had evolved, and
most jurisdictions had abandoned the “traditional dichotomy
of permanent versus temporary takings.” Id. at 851.
Accordingly, the BIA updated its jurisprudence to reflect the
majority of states and the Model Penal Code, and held that “a
theft offense is a crime involving moral turpitude if it
involves an intent to deprive the owner of his property either
permanently or under circumstances where the owner’s
property rights are substantially eroded.” Id. at 853. Under
this definition, a theft offense may involve moral turpitude
“despite the fact that it does not require the accused to intend
a literally permanent taking.” Id. at 852 (emphasis omitted).
Further, the BIA stated that “to the extent that any of our
SILVA V. BARR 13
prior decisions have required a literal intent to permanently
deprive in order for a theft offense to be a crime involving
moral turpitude, those decisions are overruled.” Id. at 855.
We subsequently held that the BIA’s decision to
“abandon the literally-permanent deprivation test” constituted
an abrupt change in law that would impose “a new and severe
burden” if applied to persons who were convicted while the
“old rule was extant.” Garcia-Martinez v. Sessions, 886 F.3d
1291, 1295–96 (9th Cir. 2018). Accordingly, we held that the
BIA’s new rule would not apply to persons who were
convicted before November 16, 2016, the date on which the
BIA issued its decision in Matter of Diaz-Lizarraga. Id.
at 1296. In short, under Garcia-Martinez, the elements of a
generic theft offense involving moral turpitude for
convictions before November 16, 2016 are: (1) the taking of
property or an exercise of control over property (2) without
consent and (3) with the intent of causing a permanent
deprivation of the property. See id. But for convictions after
November 16, 2016, the third element becomes: “[with the]
intent to deprive the owner of his property either permanently
or under circumstances where the owner’s property rights are
substantially eroded.” Matter of Diaz-Lizarraga, 26 I. & N.
Dec. at 852–53.
B
Having identified the BIA’s interpretation of a generic
theft offense involving moral turpitude, we turn to the second
step of the categorical approach, identifying the elements of
the specific crime of conviction. See Renteria-Morales,
551 F.3d at 1081. To determine the elements of a state
statute, “we may consider the interpretation of the statute
14 SILVA V. BARR
provided by state courts.” United States v. Perez, 932 F.3d
782, 785 (9th Cir. 2019).
Section 484(a) of the California Penal Code provides, in
pertinent part, “Every person who shall feloniously steal,
take, carry, lead, or drive away the personal property of
another . . . is guilty of theft.” Cal. Pen. Code § 484(a). In
1993, a California appellate court held that “[a] person who
intends only to temporarily deprive an owner of property,
albeit while acquiring or depriving the owner of the main
value of the property, does not intend to permanently deprive
the owner of the property and therefore does not have the
intent to commit theft, as that crime is defined under
California law.” People v. Marquez, 16 Cal. App. 4th 115,
123 (1993) (emphasis omitted).
The California Supreme Court subsequently cast doubt on
this statement of law. See Davis, 19 Cal. 4th at 318. In
Davis, the California Supreme Court explained in dicta that
section 484(a) includes the intent to “deprive the owner
permanently of possession of the property,” but “[t]he word
‘permanently,’ as used here is not to be taken literally,” id.
at 307 (citation omitted), and temporary takings could amount
to theft in some circumstances, id. at 307 & n.4. In support
of this, Davis explained that section 484(a) “is declaratory of
the common law,” id. at 304 n.1, and cited cases where
defendants were convicted of larceny even though they did
not intend a literally permanent deprivation, id. at 308–15.
An appellate court subsequently applied Davis’s dicta and
held that “an intent by one to do less than retain property
permanently will constitute theft when the owner’s property
was dealt with in such a way that there was a substantial risk
of permanent loss.” People v. Zangari, 89 Cal. App. 4th
1436, 1447 (2001).
SILVA V. BARR 15
Finally, the California Supreme Court resolved the
disagreement between Marquez and Zangari, and adopted the
dicta in Davis. See People v. Avery, 27 Cal. 4th 49, 55
(2002). Avery held that for purposes of section 484(a), “the
intent to deprive the owner of property only temporarily, but
for so extended a period of time as to deprive the owner of a
major portion of its value or enjoyment, satisf[ies] the
California requirement of intent to deprive the owner of the
property permanently.” Id. at 54–55. As in Davis, the
California Supreme Court explained that this was the intent
required to commit larceny at common law. Id. at 58. In
short, a person could be convicted under section 484(a) even
if that person did not intend to effect a literally permanent
taking of property. Id. at 55.
C
Under the categorical approach, the next step is to
determine “whether the elements of the alien’s state statute of
conviction criminalize more conduct than, or the same
conduct as, the elements of a generic federal offense.” Diego
v. Sessions, 857 F.3d 1005, 1009 (9th Cir. 2017). If the
elements of the specific crime of conviction criminalize the
same or less conduct than the generic offense, the specific
crime of conviction categorically qualifies as a crime
involving moral turpitude. See id.If we were writing on a clean slate, the third step would
proceed as follows. Silva was convicted of violating section
484(a) of the California Penal Code in 1998, 2004, and 2007.
According to Garcia-Martinez, at those times, the BIA’s
generic definition of a theft offense involving moral turpitude
consisted of the following elements: (1) the taking of
property or an exercise of control over property (2) without
16 SILVA V. BARR
consent and (3) with the intent to permanently deprive the
owner of the property. See 886 F.3d at 1296. But by 1998 it
was questionable whether a violation of section 484(a)
required that the offender intend a literally permanent
deprivation of property, see Davis, 19 Cal 4th at 307, and by
2004, it was clear that section 484(a) did not require such an
intent, see Avery, 27 Cal. 4th at 55. Therefore, at the time of
at least two of Silva’s offenses, section 484(a) criminalized
more conduct than the BIA’s generic theft offense involving
moral turpitude, and so the state statute did not categorically
define a crime involving moral turpitude. See Garcia-
Martinez, 886 F.3d at 1296.7 Under this analysis, Silva
would not be removable under 8 U.S.C. § 1227(a)(2)(A)(ii)
because he was not convicted “of two or more crimes
involving moral turpitude.”
D
We are not, however, writing on a clean slate. Before
Avery was decided, we held that a conviction under section
484(a) for petty theft qualified as a crime involving moral
turpitude. See United States v. Esparza-Ponce 193 F.3d
1133, 1136 (9th Cir. 1999). We reached this conclusion
without delving into the question whether the intent
requirement in section 484(a) criminalized more conduct than
the BIA’s definition of the intent requirement for a theft
7
The outcome may be different today given that the BIA’s current
interpretation of a theft offense involving moral turpitude does not require
an intent to effect a literally permanent taking. See Matter of Diaz-
Lizarraga, 26 I. & N. Dec. at 852–53 (holding that “a theft offense is a
crime involving moral turpitude if it involves an intent to deprive the
owner of his property either permanently or under circumstances where
the owner’s property rights are substantially eroded,” which does not
require “a literally permanent taking” (emphasis omitted)).
SILVA V. BARR 17
offense involving moral turpitude. After Avery ruled that
section 484(a) does not require an intent to effect a literally
permanent deprivation, 27 Cal. 4th at 55, we continued to rely
on Esparza-Ponce, see Castillo-Cruz, 581 F.3d at 1159;
Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir.
2008) (per curiam). In Flores Juarez, decided six years after
Avery, the petitioner was “convicted of three separate petty
theft offenses in violation of California Penal Code §§ 484
and 488.” 530 F.3d at 1022. Without mentioning Avery, we
relied on Esparza-Ponce to conclude that “[p]etty theft is a
crime involving moral turpitude.” Id. And in Castillo-Cruz,
decided seven years after Avery, we stated that petty theft in
violation of section 484(a) was a crime involving moral
turpitude because it required “the specific intent to deprive
the victim of his property permanently.” 581 F.3d at 1160(citation omitted).
Garcia-Martinez puts our conclusions in Esparza-Ponce,
Flores Juarez, and Castillo-Cruz in question, because these
opinions failed to analyze the potential distinction between
the intent requirement in section 484(a) and the BIA’s
articulation of the intent required for a theft offense involving
moral turpitude before Matter of Diaz Lizarraga. But we are
nevertheless bound by our precedent. “[T]he first panel to
consider an issue sets the law not only for all the inferior
courts in the circuit, but also future panels of the court of
appeals.” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.
2001). In our circuit, a three-judge panel must apply binding
precedent even when it is clearly wrong because (for
example) it failed to recognize an intervening change in the
law. See United States v. Contreras, 593 F.3d 1135, 1136
(9th Cir. 2010) (en banc) (holding that a three-judge panel
lacked authority to overrule decisions that failed to recognize
an intervening amendment to a sentencing guideline). Only
18 SILVA V. BARR
an en banc court has the power to fix these errors. See Sierra
Forest Legacy v. Sherman, 646 F.3d 1161, 1189 (9th Cir.
2011). A three-judge panel can reconsider the law of the
circuit only when “the relevant court of last resort” has
“undercut the theory or reasoning underlying the prior circuit
precedent in such a way that the cases are clearly
irreconcilable,” Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir.2003) (en banc), or when a three-judge panel must follow
an agency construction entitled to Chevron deference rather
than a prior judicial interpretation of an ambiguous statute,
see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 982 (2005).
Because Avery predates Castillo-Cruz and Flores Juarez,
there is no “intervening decision on controlling state law by
a state court of last resort,” Gammie, 335 F.3d at 893, and we
are “bound to reach the same result” as our precedent,
Massanari, 266 F.3d at 1170. We therefore conclude that
Silva’s three separate violations of section 484(a) constitute
crimes involving moral turpitude. See, e.g., Castillo-Cruz,
581 F.3d at 1159. Accordingly, the BIA did not err in relying
on our binding precedent to conclude that Silva was
removable on the ground that he was “convicted of two or
more crimes involving moral turpitude.” 8 U.S.C.
§ 1227(a)(2)(A)(ii).8
8
Silva’s argument that the phrase “crimes involving moral turpitude”
is unconstitutionally vague is foreclosed by our recent opinion in
Martinez-de Ryan v. Whitaker, 909 F.3d 247, 251–52 (9th Cir. 2018), cert.
denied sub nom. Martinez-de Ryan v. Barr, 140 S. Ct. 134 (2019).
Although Silva purports to raise a new argument regarding why the phrase
is void for vagueness, we are bound by prior circuit law even when a new
litigant raises arguments that are “characterized differently or more
persuasively.” United States v. Ramos-Medina, 706 F.3d 932, 939 (9th
Cir. 2013).
SILVA V. BARR 19
III
We next turn to the BIA’s denial of Silva’s motion to
reopen. Although Silva did not seek relief from removal at
his initial hearing, an alien may move to reopen proceedings
for the purpose of submitting new applications for relief. See
8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(1). We review
the denial of a motion to reopen for an abuse of discretion and
reverse only if the BIA’s decision was “arbitrary, irrational,
or contrary to law.” Valeriano v. Gonzales, 474 F.3d 669,
672 (9th Cir. 2007) (citation omitted).
Where, as here, the motion to reopen is based on changed
circumstances in the country to which removal has been
ordered, the movant must: (1) produce evidence that
conditions have changed in the country of removal,
(2) demonstrate that the evidence is material, (3) show that
the evidence was not available and would not have been
discovered or presented at the previous hearing, and
(4) demonstrate that the new evidence, when considered
together with the evidence presented at the original hearing,
would establish prima facie eligibility for the relief sought.
See 8 U.S.C. 1229a(c)(7)(ii); 8 C.F.R. § 1003.2(c)(1);
Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017).9
9
Section 1229a(c)(7) provides, “There is no time limit on the filing
of a motion to reopen if the basis of the motion is to apply for relief under
sections 1158 [asylum] or 1231(b)(3) [withholding of removal] of this title
and is based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if such
evidence is material and was not available and would not have been
discovered or presented at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(ii) (footnote omitted). The regulations governing such
20 SILVA V. BARR
Here, the BIA denied the motion to reopen on the ground
that Silva had not established the fourth prong: that the new
evidence would establish a prima facie case for the relief
sought. Therefore, our review is limited to that ground. See
Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000). To
establish a prima facie case, the movant must adduce
evidence that, along with the facts already in the record, “will
support the desired finding if evidence to the contrary is
disregarded.” Maroufi v. INS, 772 F.2d 597, 599 (9th Cir.
1985); see also Sakhavat v. INS, 796 F.2d 1201, 1204 (9th
Cir. 1986) (stating that, at the motion-to-reopen stage, the
BIA must determine whether the movant’s affidavits “on their
face cumulatively establish a clear probability” that he is
entitled to the relief sought). The BIA may not make
credibility determinations on motions to reopen, Yang v.
Lynch, 822 F.3d 504, 509 (9th Cir. 2016), and “must accept
as true the facts asserted by the [movant], unless they are
‘inherently unbelievable,’” Agonafer, 859 F.3d at 1203
(quoting Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)).10
Nevertheless, “[c]ourts have recognized that a prima facie
case of the clear probability of persecution cannot be
established from speculative conclusions or vague
assertions.” Maroufi, 772 F.2d at 599; see also Nagoulko v.
INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (holding that an
alien’s fear of a hostile political party regaining power in her
country is “too speculative to be credited as a basis for fear of
motions appear at 8 C.F.R. § 1003.2. We have held that these regulations
also apply to claims under the Convention Against Torture. Go v. Holder,
744 F.3d 604, 609 (9th Cir. 2014).
10
“[W]here some of the evidence is developed at a hearing, the [BIA]
is of course free to interpret that evidence free from inferences in favor of
the moving party.” Limsico, 951 F.2d at 213 (citation omitted).
SILVA V. BARR 21
future persecution” absent “specific evidence” suggesting that
such an event will occur). Therefore, “[a]ffidavits submitted
in support of motions to reopen deportation proceedings must
contain specific facts in order to carry the burden of
establishing a clear probability of persecution.” Maroufi,
772 F.2d at 600.
We turn to the question whether Silva established a prima
facie case for asylum or withholding of removal. Silva does
not contend that he suffered past persecution in the
Philippines, so to qualify for asylum he must demonstrate “a
well-founded fear of future persecution” in the Philippines,
8 C.F.R. § 1208.13(b), “on account of race, religion,
nationality, membership in a particular social group, or
political opinion,” 8 U.S.C. § 1101(a)(42). In the absence of
past persecution, an applicant must prove both a subjective
fear of future persecution, 8 C.F.R. § 1208.13(b)(2)(i)(A), and
an objectively “reasonable possibility” of future persecution,
8 C.F.R. § 1208.13(b)(2)(i)(B). “The objective component
requires a showing, by credible, direct, and specific evidence
in the record, of facts that would support a reasonable fear of
persecution.” Limsico, 951 F.2d at 212 (citation omitted).
“Speculation on what could occur is not enough to establish
a reasonable fear.” Bartolome v. Sessions, 904 F.3d 803, 814
(9th Cir. 2018).
Section 1231(b)(3) provides for withholding of removal.
8 U.S.C. § 1231(b)(3). To qualify for this form of relief, the
applicant must demonstrate that it is “more likely than not
that he or she would be persecuted on account of race,
religion, nationality, membership in a particular social group,
or political opinion upon removal to [the country in
question].” 8 C.F.R. § 1208.16(b)(2). The “more likely than
not” standard for withholding of removal is “more stringent”
22 SILVA V. BARR
than the “reasonable possibility” standard for asylum, and
therefore an applicant who is unable to show a “reasonable
possibility” of future persecution “necessarily fails to satisfy
the more stringent standard for withholding of removal.”
Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004);
accord Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th
Cir. 2019).
Here, the BIA did not abuse its discretion in concluding
that Silva failed to establish a prima facie case for asylum or
withholding of removal. In his declaration, Silva speculated
that someone in the Philippines could report his past drug use
to the government, or that he might succumb to the
temptation to begin using drugs again. Silva did not,
however, submit any “specific evidence” that such events
might occur, and these possibilities are “too speculative to be
credited as a basis for fear of future persecution.” Nagoulko,
333 F.3d at 1018. Accordingly, the BIA did not abuse its
discretion in concluding that Silva failed to establish a prima
facie case for asylum. Therefore, he also “necessarily fail[ed]
to satisfy the more stringent standard for withholding of
removal.” Mansour, 390 F.3d at 673.
We next turn to the question whether Silva established a
prima facie case for protection under the Convention Against
Torture (CAT). To qualify for CAT protection, the applicant
must “establish that it is more likely than not that he or she
would be tortured if removed to [the country in question].”
8 C.F.R. § 1208.16(c)(2); accord Duran-Rodriguez, 918 F.3d
at 1029.
It was neither arbitrary nor irrational for the BIA to
conclude that Silva’s speculations in his motion to reopen and
declaration were insufficient to show “that it is more likely
SILVA V. BARR 23
than not that he would be tortured if removed to [the
Philippines].” Duran-Rodriguez, 918 F.3d at 1029 (citing
8 C.F.R. § 1208.16(c)(2)); see Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010) (holding that generalized
evidence of crime in Mexico was insufficient to establish
prima facie eligibility for CAT protection). Therefore, the
BIA did not abuse its discretion in concluding that Silva
failed to establish a prima facie case for CAT protection.
PETITIONS DENIED.
BERZON, Circuit Judge, concurring:
I concur in the majority opinion in full. I write separately
to reiterate yet again my view that the phrase “crime
involving moral turpitude” is unconstitutionally vague. See
Barbosa v. Barr, 926 F.3d 1053, 1060–61 (9th Cir. 2019)
(Berzon, J., concurring); Jauregui-Cardenas v. Barr, 946
F.3d 1116, 1121 (9th Cir. 2020) (Berzon, J., concurring). The
majority opinion provides yet another example of our “failed
enterprise” to consistently determine whether a crime
involves moral turpitude when there is no “coherent criteria”
as to what that phrase encompasses. Islas-Veloz v. Whitaker,
914 F.3d 1249, 1258–61 (9th Cir. 2019) (Fletcher, J.,
concurring). As “persistent efforts” have failed “to establish
a standard” of what a “crime involving moral turpitude” is, it
is time to revisit whether this phrase is unconstitutionally
vague. See Johnson v. United States, —U.S.—, 135 S. Ct.
2551, 2558 (2015) (internal citation and quotation marks
omitted).