Julio Fernandez v. William Barr

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS JULIO CESAR FERNANDEZ, AKA Julio No. 17-71969 Cesar-Magana, AKA Julio Cesar Fernandez- Magana, Agency No. A095-588-425 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 9, 2019 Pasadena, California Before: BEA, COLLINS, and BRESS, Circuit Judges. Julio Cesar Fernandez, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the determination of an Immigration Judge (“IJ”) that Fernandez is ineligible for cancellation of removal. We have jurisdiction under § 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252, and we deny the petition. On remand from this court in connection with Fernandez’s prior petition for * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. review, the BIA in 2017 upheld the IJ’s 2011 determination that Fernandez’s 1998 conviction for aggravated assault in violation of California Penal Code § 245(a)(1) is a “crime involving moral turpitude” that rendered Fernandez ineligible for cancellation of removal under INA § 240A(b)(1)(C). See 8 U.S.C. § 1229b(b)(1)(C); see also id. § 1182(a)(2)(A)(i)(I). In reaching this conclusion, the BIA relied on its then-recent published decision in Matter of Wu, 27 I. & N. Dec. 8 (BIA 2017), which held that the pre-2012 version of California Penal Code § 245(a)(1) under which Fernandez was convicted was categorically a crime involving moral turpitude. At oral argument, Fernandez agreed that Matter of Wu would be entitled to deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and in any event, we have expressly so held in Safaryan v. Barr, ___ F.3d ___, No. 16-74039 (9th Cir. Sept. 17, 2020). Fernandez nonetheless contends that the BIA’s application of Matter of Wu to his case is impermissibly retroactive. We disagree. To determine whether an agency’s adjudicatory decision may be applied retroactively, we generally consider the following five factors: (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. 2 Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982) (citation and internal quotation marks omitted). We have held that the first factor, which “is meant to ensure that the party responsible for a change in law receives the benefits of the new rule,” is “less relevant” in “the ...

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