FILED
NOT FOR PUBLICATION NOV 06 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO PEREZ-AGUILAR, No. 13-70534
Petitioner, Agency No. A095-782-642
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 7, 2014
Phoenix, Arizona
Before: D.W. NELSON, SILVERMAN, and M. SMITH, Circuit Judges.
Guillermo Perez-Aguilar (“Perez-Aguilar”) petitions for review of the Board
of Immigration Appeals’ (“BIA”) dismissal of his appeal of a final order of
removal. The BIA held that Perez-Aguilar had been convicted of a crime
involving moral turpitude (“CIMT”) and was thus ineligible for cancellation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
removal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the
petition.
Perez-Aguilar is a native and citizen of Mexico, born in 1978, who entered
the U.S. in 1996 without inspection. On April 26, 2009, the Department of
Homeland Security (“DHS”) served Perez-Aguilar with a Notice to Appear,
charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) as a person
present in the United States without being admitted or paroled, although these
initial proceedings were not concluded. In July 2011, Perez-Aguilar pled guilty to
felony endangerment in Arizona under Arizona Revised Statute § 13-1201 and
misdemeanor driving under the influence of intoxicating liquor or drugs under
Arizona Revised Statute § 28-1381(A)(1). DHS thereafter re-initiated the removal
proceedings on July 30, 2012, due to Perez-Aguilar’s conviction. Perez-Aguilar
conceded removability, but filed an Application for Cancellation of Removal and
Adjustment of Status of Certain Nonpermanent Residents (“Application”). On
October 4, 2012, DHS moved the immigration judge (“IJ”) to pretermit Perez-
Aguilar’s Application, and the IJ granted the request. Perez-Aguilar timely
appealed the IJ’s decision to the BIA, which dismissed his appeal in an
unpublished opinion on February 7, 2013, relying explicitly on the BIA’s recent
2
decision in Matter of Leal, 26 I. & N. Dec. 20 (BIA 2012), which held felony
endangerment was categorically a CIMT.
Where the BIA’s decision is unpublished, but directly controlled by a
published opinion, as here, we must defer to the BIA’s conclusion so long as it is a
“permissible construction of the INA.” Marmolejo-Campos v. Holder, 558 F.3d
903, 913 (9th Cir. 2009) (en banc). In an opinion filed contemporaneous with this
memorandum, we upheld the BIA’s decision in Matter of Leal as a reasonable
interpretation of the INA under the Chevron framework, Leal v. Holder, ___ F.3d
____ (9th Cir. [Date], 2014). Our opinion in that case is controlling here.1
As we have previously explained, CIMTs may be premised on reckless
conduct where there is “serious resulting harm.” Ceron v. Holder, 747 F.3d 773,
1
We reject Perez-Aguilar’s argument that applying Leal to this matter is an
impermissible retroactive enforcement of a new agency rule. A question of
retroactivity arises only where there is an explicit change in the law. See James B.
Beam Distilling Co. v. Georgia, 501 U.S. 529, 534 (1991) (“It is only when the law
changes in some respect that an assertion of nonretroactivity may be entertained,
the paradigm case arising when a court expressly overrules a precedent upon which
the contest would otherwise be decided differently and by which the parties may
previously have regulated their conduct.”). Prior to Leal, the BIA had never
determined in a published opinion whether felony endangerment in Arizona is
categorically a CIMT and had instead issued conflicting decisions in non-
precedential, unpublished decisions. Compare Matter of Valles-Moreno, 2006 WL
3922279 (BIA 2006), with Matter of Lopez-Orosco, 2010 WL 5635156 (BIA
2010). Thus, the BIA’s decision in Leal does not constitute a change in the law
that triggers the retroactivity analysis.
3
783 (9th Cir. 2014) (en banc) (quoting In re Solon, 24 I. & N. Dec. 239, 242 (BIA
2007)). Recklessly placing another person in actual substantial risk of imminent
death, as is required for felony endangerment, State v. Carreon, 107 P.3d 900, 909
(Ariz. 2005) (en banc), is “base, vile, and depraved conduct” that qualifies this
crime as a CIMT, Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010) (internal
quotation marks omitted). Because a required element of felony endangerment is
substantial, actual risk of imminent death to another person, there is no “realistic
possibility” that the statute will be applied to non-turpitudinous conduct. See
Turijan v. Holder, 744 F.3d 617, 620 (9th Cir. 2014). Thus, the BIA’s decision
was based on a permissible construction of the statute.
PETITION FOR REVIEW DENIED.
4