Felipe Betansos v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FELIPE CRUZ BETANSOS, No. 15-72347
Petitioner,
Agency No.
v. A077-310-010

WILLIAM P. BARR, Attorney General,
Respondent. OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted April 12, 2018
Pasadena, California

Filed July 5, 2019

Before: Carlos T. Bea and Mary H. Murguia, Circuit
Judges, and Stanley Allen Bastian, * District Judge.

Opinion by Judge Murguia;
Concurrence by Judge Murguia

*
The Honorable Stanley Allen Bastian, United States District Judge
for the Eastern District of Washington, sitting by designation.
2 BETANSOS V. BARR

SUMMARY **

Immigration

Denying Felipe Cruz Betansos’s petition for review of a
decision of the Board of Immigration Appeals, the panel
deferred to the BIA’s decision in Matter of Cortes Medina
that a conviction for indecent exposure under California
Penal Code § 314(1) is categorically a crime involving moral
turpitude (“CIMT”) and held that Cortes Medina applied
retroactively to Betansos’s case such that his § 314(1)
conviction was a CIMT that made him ineligible for
cancellation of removal.

In concluding that Betansos’s indecent exposure
conviction under § 314(1) was a CIMT, the BIA relied on its
published decision in Matter of Cortes Medina, 26 I. & N.
Dec. 79 (BIA 2013). However, the BIA’s decision in Cortes
Medina contradicted this court’s earlier decision, Nunez v.
Holder, 594 F.3d 1124 (9th Cir. 2010), in which the court
held that indecent exposure under § 314(1) was not
categorically a CIMT. In Nunez, the court determined that
the BIA’s unpublished decision did not merit deference and
adopted a definition of moral turpitude that required the
infliction of harm or the involvement of a protected class. In
Cortes Medina, the BIA disagreed with Nunez’s generic
definition as being too narrow, concluding that the defining
characteristic of a CIMT in the indecent exposure context is
whether the offense includes “lewd intent.”

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 BETANSOS V. BARR 3

The panel concluded that it must defer to Cortes Medina
under National Cable & Telecommunications Association v.
Brand X Internet Services, 545 U.S. 967 (2005). The panel
noted that, unlike in Nunez, the BIA in Cortes Medina
presented analysis explaining how it arrived at its generic
definition of moral turpitude and explained why violations
of § 314(1) are a categorical match to that generic definition.
Because Cortes Medina did not misrepresent the authorities
it relied on, it relied on published BIA authority, and its
analysis was reasoned and thorough, the panel concluded
that it could not say that the BIA’s decision was
unreasonable.

Applying the five-factor retroactivity framework from
Montgomery Ward &. Co., Inc. v. FTC, 691 F.2d 1322 (9th
Cir. 1982), the panel also concluded that Cortes Medina
applied retroactively to Betansos. The panel concluded that
the first factor was not in play in this case, and that the fourth
factor—the burden imposed by retroactive application—
clearly favored Betansos, but that the fifth factor—the
statutory interest in applying a new rule—leaned in the
government’s direction. Noting that the second factor—
whether the new rule represents an abrupt departure from
well established practice—arguably favored Betansos, the
panel concluded that overall the factors supported
retroactive application because factor three—reliance on the
new rule—weighed against Betansos. Specifically, the
panel concluded that Betansos did not show that he in fact
relied on Nunez prior to the BIA’s decision in Cortes
Medina.

Specially concurring, Judge Murguia, joined by Judge
Bastian, wrote separately to note a tension between the
realities of criminal prosecutions and the tools the court
applies in immigration cases involving the categorical
4 BETANSOS V. BARR

approach. Judge Murguia wrote that, because the vast
majority—and nearly all—of criminal cases are resolved
through plea bargains, a gap remains in the approaches for
demonstrating a “realistic probability” of prosecution for
conduct that falls outside the generic definition of a crime.
Accordingly, Judge Murguia noted that it would be worth
developing a mechanism for considering what conduct
prosecutors charge and results in defendants accepting pleas.

COUNSEL

Robert Francis Jacobs (argued), Robert F. Jacobs &
Associates, Santa Fe Springs, California, for Petitioner.

Erica Miles (argued), Trial Attorney; John W. Blakeley,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
 BETANSOS V. BARR 5

OPINION

MURGUIA, Circuit Judge:

Felipe Cruz Betansos, a native and citizen of Mexico,
appeals the Board of Immigration Appeals’ (“BIA”)
dismissal of his application for cancellation of removal. In
dismissing his appeal, the BIA affirmed the Immigration
Judge’s (“IJ”) conclusion that Betansos’s conviction for
indecent exposure under California Penal Code § 314(1) is
categorically a crime involving moral turpitude (“CIMT”).
Betansos’s criminal record also includes a petty theft
conviction, which he does not dispute is a CIMT. Therefore,
if Betansos’s indecent exposure conviction is a CIMT,
Betansos is ineligible for cancellation of removal because
aliens convicted of two CIMTs are ineligible for cancellation
of removal. 8 U.S.C. § 1229b(b)(1)(C).

In affirming the IJ’s determination that Betansos’s
indecent exposure conviction is a CIMT, the BIA relied on
its published decision in Matter of Cortes Medina, 26 I. &
N. Dec. 79 (BIA 2013), which held that a conviction under
§ 314(1) is categorically a CIMT. Cortes Medina contradicts
our 2010 decision, Nunez v. Holder, 594 F.3d 1124 (9th Cir.
2010), in which we rejected the BIA’s determination that
§ 314(1) is categorically a CIMT because the BIA decision
we reviewed in Nunez rested entirely on an unproven
statement that § 314(1) requires sexual motivation. Nunez,
594 F.3d at 1133. In Nunez, we held that indecent exposure
under § 314(1) is not categorically a CIMT. Id. at 1138.

We must now decide whether to defer to the BIA’s more
recent determination in Cortes Medina that a violation of
§ 314(1) categorically constitutes a CIMT. If we defer to
Cortes Medina, we must also decide whether we will do so
retroactively. For the reasons explained below, we conclude
6 BETANSOS V. BARR

that we must defer to Cortes Medina pursuant to the
framework outlined in National Cable &
Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967, 982 (2005). We also conclude that
Cortes Medina applies retroactively in Betansos’s case. We
therefore deny Betansos’s petition for review.

I.

Betansos entered the United States in 1989 and has
resided here since. He is unmarried, but he lives with his
longtime girlfriend with whom he has a 17-year-old daughter
who is a United States citizen.

Betansos has five criminal convictions in California.
Relevant here are his 1989 petty theft, Cal. Penal Code
§ 484(a), and 2002 indecent exposure, Cal. Penal Code
§ 314(1), convictions. 1

On April 22, 2010, the Department of Homeland
Security (“DHS”) served Betansos with a Notice to Appear,
which initiated his removal proceedings. At that time,
Betansos was in custody. On May 11, 2012, Betansos,
represented by counsel, admitted that he is not lawfully
present in the United States and is a citizen of Mexico and
conceded removability. On September 14, 2012, Betansos
and his attorney appeared before the IJ to file his application
for cancellation of removal. About a year later, in October
2013, the IJ held another hearing and denied Betansos’s
application for relief.

1
Betansos was also convicted in 1994 for driving with a blood
alcohol level of .08 or more, Cal. Veh. Code § 23152(b), and in 2003 and
2007, for domestic battery, Cal. Penal Code § 243(e)(1).
 BETANSOS V. BARR 7

A.

Betansos requested cancellation of removal as relief
from deportation. To be eligible for cancellation of removal,
Betansos had to demonstrate, among other things, that he
was not convicted of certain enumerated offenses. 2 8 U.S.C.
§ 1229b(b)(1)(C).

In denying Betansos’s application for cancellation of
removal, the IJ concluded that because Betansos had been
convicted of two CIMTs—petty theft and indecent
exposure—he was statutorily ineligible for cancellation of
removal. 8 U.S.C. § 1229b(b)(1)(B), (C). The IJ relied on
Cortes Medina to conclude that indecent exposure
constitutes a CIMT, noting that Cortes Medina held that
indecent exposure under § 314(1) includes “the element of
lewd intent.” Cortes Medina was decided on January 8,
2013, after Betansos applied for cancellation of removal but
before the IJ held the October 2013 hearing. Because
Betansos sought no other form of relief, the IJ ordered
Betansos removed to Mexico. Betansos timely appealed the
IJ’s decision to the BIA.

B.

The BIA dismissed Betansos’s appeal on June 29, 2015.
In dismissing the appeal, the BIA agreed with the IJ that
Betansos was ineligible for cancellation of removal because
he was convicted of two CIMTs. The BIA noted that

2
Betansos also had to demonstrate that: (1) he had been
continuously physically present in the United States for not less than
10 years immediately before his application was filed, (2) he was a
“person of good moral character” during that time, and (3) his removal
would “result in exceptional and extremely unusual hardship” to his
United States citizen daughter. 8 U.S.C. § 1229b(b)(1)(A)–(D).
8 BETANSOS V. BARR

Betansos did not contest that his petty theft conviction is a
CIMT. Then, citing to Cortes Medina, the BIA affirmed the
IJ’s conclusion that Betansos’s indecent exposure conviction
was categorically a CIMT. In explaining why the BIA
affirmed the IJ’s decision, the BIA noted that Betansos bears
the burden of demonstrating he is eligible for relief. The BIA
found that Betansos had not met his burden of showing that
“under current law a realistic probability exists that
California would apply the [indecent exposure] statute,
either in his case or generically, to conduct that would not
involve moral turpitude.” 3 In other words, Betansos failed to
show that California would prosecute non-morally
turpitudinous conduct under § 314(1). The BIA also
highlighted that it found no published or unpublished
California cases since Nunez applying § 314(1) to non-
morally turpitudinous conduct. Accordingly, the BIA
concluded that Cortes Medina applied, that the IJ did not err
in relying on Cortes Medina, and that Betansos’s conviction
under § 314(1) was a CIMT.

Betansos timely appealed the BIA’s decision.

II.

We lack jurisdiction to review a final order of removal
based on a petitioner’s conviction of a CIMT. See
Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.
2009) (en banc) (citing 8 U.S.C. § 1252(a)(2)(C)). However,
we retain jurisdiction to determine whether a petitioner’s

3
For a state statute of conviction to be categorically broader than
the generic definition of a crime, “a realistic probability, not a theoretical
possibility, [must exist] that the State would apply its statute to conduct
that falls outside the generic definition of a crime.” Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007).
 BETANSOS V. BARR 9

conviction is in fact a CIMT as defined in the Immigration
and Nationality Act (“INA”). Id.

III.

Generally, when determining whether a petitioner’s
conviction is categorically a CIMT, we undertake a two-step
process. See Rivera v. Lynch, 816 F.3d 1064, 1070 (9th Cir.
2016) (citing Marmolejo-Campos, 558 F.3d at 907–11).
“First, we identify the elements of the statute of conviction,
reviewing the BIA’s conclusions on this point de novo.”
Vinh Tan Nguyen v. Holder, 763 F.3d 1022, 1027 (9th Cir.
2014); see also Marmolejo-Campos, 558 F.3d at 907.

Second, after identifying the elements of the statute of
conviction, we engage in the categorical approach and
“compare the elements of the statute of conviction to the
generic definition of a [CIMT] and decide whether the
conviction meets that definition.” Castrijon-Garcia v.
Holder, 704 F.3d 1205, 1208 (9th Cir. 2013). In so doing,
“[w]e rely on our own generalized definition of moral
turpitude, which divides almost all CIMTs into two basic
types: those involving fraud and those involving grave acts
of baseness or depravity.” Rivera, 816 F.3d at 1070 (internal
quotation marks omitted).

However, our review of the BIA’s conclusion that a
statute of conviction is categorically a CIMT is “governed
by the same traditional principles of administrative
deference we apply to the [BIA’s] interpretation of other
ambiguous terms in the INA.” Marmolejo-Campos,
558 F.3d at 911. Accordingly, where “the [BIA] determines
that certain conduct is morally turpitudinous in a
precedential decision, we apply Chevron deference
regardless of whether the order under review is the
precedential decision itself or a subsequent unpublished
10 BETANSOS V. BARR

order that relies upon it.” Id. at 911. Under Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), we defer to an agency’s interpretation of
ambiguous language in a statute where Congress has
delegated authority to the agency to enforce the statute
containing the ambiguous text. Id. at 908–09. Nevertheless,
where the BIA issues a precedential decision with “no
reasoned explanation for its conclusion,” Chevron deference
is unwarranted. Rivera, 816 F.3d at 1070. Instances where
we do not defer to the BIA’s interpretation of ambiguous
statutory language, however, are rare. Id. at 1071.

A.

We first interpret the statute of conviction to identify its
essential elements. In relevant part, Cal. Penal Code § 314(1)
states, “[e]very person who willfully and lewdly . . .
[e]xposes his person, or the private parts thereof, in any
public place, or in any place where there are present other
persons to be offended or annoyed thereby . . . is guilty of a
misdemeanor.” Cal. Penal Code § 314(1), (2). California
Jury Instructions provide that to find a defendant guilty
under § 314, the government must prove:

(1) The defendant willfully exposed (his/her)
genitals in the presence of another person or
persons who might be offended or annoyed
by the defendant’s actions; [AND] (2) [w]hen
the defendant exposed (himself/herself),
(he/she) acted lewdly by intending to direct
public attention to (his/her) genitals for the
purpose of sexually arousing or gratifying
(himself/herself) or another person, or
sexually offending another person.
 BETANSOS V. BARR 11

Judicial Council of Cal. Crim. Jury Instr. No. 1160, Indecent
Exposure (2018). Further, under California law,

[A] person does not expose his private parts
“lewdly” within the meaning of section 314
unless his conduct is sexually motivated.
Accordingly, a conviction of that offense
requires proof beyond a reasonable doubt that
the actor not only meant to expose himself,
but intended by his conduct to direct public
attention to his genitals for purposes of sexual
arousal, gratification, or affront.

People v. Archer, 119 Cal. Rptr. 2d 783, 785 (Ct. App. 2002)
(citing In re Smith, 7 Cal. 3d 362, 366 (1972)); see also
People v. Ballard, 16 Cal. Rptr. 2d 624, 630 (Ct. App. 1993)
(“This requirement of lewdness, which is needed for a
conviction of indecent exposure in California, supplies the
assurance that a conviction for indecent exposure is one
which necessarily involves moral turpitude.”); People v.
Carbajal, 8 Cal. Rptr. 3d 206, 208 (Ct. App. 2003).

Based on the above authorities and reviewing de novo, it
is clear that for a person to be convicted under § 314(1), the
following three elements are required: (1) the person must
have willfully exposed his or her genitals in the presence of
others who could be “offended or annoyed”; (2) such
exposure must have been sexually motivated, or “lewd”; and
(3) the exposure must have been made with the intent to
sexually arouse, gratify, or affront the offender or another
person.

B.

With this background in mind, we next consider whether
the BIA’s conclusion in Cortes Medina that a violation of
12 BETANSOS V. BARR

§ 314(1) categorically constitutes a CIMT is reasonable and
therefore entitled to Chevron deference. See Brand X,
545 U.S. at 980; Garfias-Rodriguez v. Holder, 702 F.3d 504,
507 (9th Cir. 2012) (en banc).

Under Chevron’s familiar two-step analysis, we first ask
if Congress has directly spoken to the issue; step two asks
whether the agency’s interpretation of ambiguous language
in the statute the agency is charged with administering is
reasonable. Garfias-Rodriguez, 702 F.3d at 508 n.2 (citing
Chevron, 467 U.S. at 842–44). We have stated that the term
“moral turpitude” “falls well short of clarity” and “is perhaps
the quintessential example of an ambiguous phrase.”
Marmolejo-Campos, 558 F.3d at 909; see also Nunez,
594 F.3d at 1130. Congress has not clearly defined “moral
turpitude,” and we move to Chevron’s second step.

We have hesitated to defer to the BIA’s general
understanding of the term “moral turpitude” because the
BIA’s “general definition of moral turpitude fails to
particularize the term in any meaningful way.” See
Marmolejo-Campos, 558 F.3d at 910 (internal quotation
marks omitted). Instead, “[w]e [have] rel[ied] on our own
generalized definition of moral turpitude, which divides
almost all CIMTs into two basic types: those involving fraud
and those involving grave acts of baseness or depravity.”
Rivera, 816 F.3d at 1071 (internal quotation marks omitted).
Our understanding of moral turpitude, we have stated, does
not differ materially from the BIA’s understanding.
Marmolejo-Campos, 558 F.3d at 910.

In Cortes Medina, the BIA explicitly invoked its
authority pursuant to Chevron and reaffirmed in Brand X to
interpret ambiguous language in the INA, and re-assessed
our definition of moral turpitude in Nunez. Cortes Medina,
26 I. & N. Dec. at 81. We turn to determining if the BIA’s
 BETANSOS V. BARR 13

reassessment was reasonable. We begin our analysis with
Nunez.

1.

In 2010, we considered whether a conviction under the
same state statute of conviction at issue here, § 314(1), is
categorically a CIMT and concluded that it is not. Nunez,
594 F.3d at 1128. In so deciding, we reviewed the generic
definition of moral turpitude in the indecent exposure
context and determined that “actual infliction of harm or a
protected class of victim” or both is required for a sexual
offense to involve moral turpitude. Id. at 1132. We further
explained that the conduct at issue needed to be more than
just offensive in order for it to be morally turpitudinous. Id.
at 1132–33. Indeed, we noted that contemporary sexual
attitudes cannot dictate whether conduct is morally
turpitudinous. Id. at 1132.

Importantly, because Nunez reviewed an unpublished
BIA decision that provided scant analysis, and we defer to
such decisions to the extent they have the “power to
persuade,” we did not defer to the BIA’s unpersuasive and
limited explanation. Id. at 1133 (citing Skidmore v. Swift &
Co., 323 U.S. 134, 139 (1944)). The BIA only provided one
paragraph of analysis that rested on an unsupported
statement that because § 314(1) requires sexual motivation,
a conviction under § 314(1) is a CIMT. Id.

Turning to how California has applied § 314(1), 4 Nunez
recognized that public exposure is not necessarily lewd, id.
4
This discussion addressed the need to show that there is a “realistic
probability, not a theoretical possibility, that the State would apply [the
indecent exposure] statute to conduct that falls outside the generic
definition of [moral turpitude].” Duenas-Alvarez, 549 U.S. at 193.
14 BETANSOS V. BARR

at 1133, and discussed California state court cases. Nunez
divided California state court cases concerning § 314(1) into
those dealing with “exposure for sexual gratification” and
“exposure for sexual affront.” Id. at 1134–38. Addressing
the exposure for sexual gratification cases, we identified a
case where California courts upheld a conviction for
violating § 314 for nude dancing at bars. Id. at 1135–36
(citing People v. Conway, 162 Cal. Rptr. 877 (Cal. App.
Dep’t Super. Ct. 1979)). We concluded that “[w]hatever
one’s view of the merits of [nude dancing], it is simply not
base, vile, and depraved” and therefore California courts
have applied § 314(1) to non-morally turpitudinous conduct.
Id. at 1135–36. 5

Nunez also identified exposure-for-sexual-affront cases
in California that fell outside the ambit of morally
turpitudinous conduct. Id. at 1136–38. We noted two cases
in which the conduct did not rise to a CIMT. Id. at 1137
(citing Archer, 119 Cal. Rptr. 2d at 786–87, and People v.
Lionel M., No. H031030, 2007 WL 2924052 (Cal. Ct. App.
2007) (unpublished)). In both instances, the male defendant
exposed his genitalia to female observers. Id. We determined
that the conduct was “crass” and “inappropriate,” but not
“inherently base, vile, and depraved.” Id. at 1138.

Based on these two types of cases, we concluded that
because nude dancers and people who have made sexual
insults have been convicted under § 314(1), there was a
realistic probability that California would apply § 314(1) to
5
The dissent, however, challenged the majority’s reliance upon the
nude dancing conviction in Conway because that case has been expressly
disapproved by subsequent California courts, thereby undermining the
conclusion that there was a realistic probability that California would
apply § 314(1) to conduct falling outside the generic definition of a
CIMT. Nunez, 594 F.3d at 1139 (Bybee, J., dissenting).
 BETANSOS V. BARR 15

non-morally turpitudinous conduct. Id. (citing Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

2.

Three years later in 2013, the BIA again addressed
whether a conviction under § 314(1) categorically
constitutes a CIMT, invoking its authority to revisit the
question under Brand X. Cortes Medina, 26 I. & N. Dec. at
80–81. The BIA recognized that determining whether a state
statute of conviction categorically is not a CIMT requires
demonstrating that a “‘realistic probability, not a theoretical
possibility,’ [exists] that the State would apply the statute to
prosecute conduct that falls outside the definition of moral
turpitude.” Id. at 82 (quoting Duenas-Alvarez, 549 U.S.
at 193). While acknowledging that “there is not a single
comprehensive definition of [CIMT],” the BIA identified
what it considers the two “essential elements” of CIMTs: a
culpable mental state and reprehensible conduct. Id.
(citations omitted). Citing its own case law, the BIA stated
that moral turpitude refers to “‘conduct which is inherently
base, vile, or depraved, and contrary to the accepted rules of
morality and duties owed between persons or to society in
general.’” Id. (quoting Matter of Ajami, 22 I. & N. Dec. 949,
950 (1999)). According to the BIA, “lewd or lascivious
intent” is required for indecent exposure to be morally
turpitudinous. Id. The BIA, therefore, disagreed with
Nunez’s generic definition of a CIMT in the indecent
exposure context. Id. at 84 (explaining that the BIA
considered Nunez’s definition of moral turpitude—which
required the infliction of harm or the involvement of a
protected class of victim—too narrow).

The BIA concluded that Nunez’s generic definition of a
CIMT is too narrow after analyzing prior BIA case law.
Pointing to Matter of P-, 2 I. & N. Dec. 117 (1944), and
16 BETANSOS V. BARR

Matter of Mueller, 11 I. & N. Dec. 268 (1965), Cortes
Medina considered cases where conduct did not constitute
CIMTs. Id. at 82–83. In Matter of P-, the BIA concluded that
the indecent exposure offense at issue—indecent exposure
in the presence of minor children in violation of Washington
State law—was not a CIMT because the exposure was not
intended to arouse sexual desires or made with lewd or
lascivious intent. Matter of P-, 2 I. & N. Dec. at 119, 121.
Likewise, in Matter of Mueller, the BIA determined the
crime there—Mueller’s public exposure of his genitals in
violation of Wisconsin law—did not constitute a CIMT
because a conviction under the state statute at issue in that
case could be secured without any demonstration of intent.
Cortes Medina, 26 I. & N. Dec. at 83 (citing Matter of
Mueller, 11 I. & N. Dec. at 270).

In contrast, the BIA pointed to Matter of Lambert, 11 I.
& N. Dec. 340 (1965), as a case where a violation of a state
statute constituted a CIMT. Id. Lambert was convicted under
Florida state law for renting rooms knowing that the rooms
would be used for lewdness or prostitution. Matter of
Lambert, 11 I. & N. Dec. at 340. The BIA concluded that
Lambert’s conviction was a CIMT. Id. at 342. Based on its
review of these three cases, the BIA also concluded that a
person convicted under § 314(1) commits a CIMT because a
conviction under this statute requires a finding of
“lewdness.” Cortes Medina, 26 I. & N. Dec. at 84.

The BIA, however, agreed with Nunez’s identification of
two types of cases prosecuted under § 314(1) that illustrate
whether violations of § 314(1) are categorically overbroad.
Id. Discussing the “sexual affront” cases first, the BIA
disagreed with our description in Nunez of the conduct in
Archer as a “tasteless prank.” Id. at 84–85 (citing Archer,
119 Cal. Rptr. 2d 783). The BIA viewed the driver’s
 BETANSOS V. BARR 17

exposure of himself as a lewd act and therefore a CIMT. Id.
As to the sexual gratification, or nude dancing, type of cases,
here too the BIA focused on lewdness. Id. at 85.
Differentiating between “simple public nudity” and
“indecent exposure with a lewd intent,” the BIA determined
that California courts require lewd intent to uphold a
conviction. Id. (citations omitted).

Importantly, the BIA also considered whether there was
a “realistic probability” that a person would be convicted
under § 314(1) for “nude dancing or other conduct that does
not involve moral turpitude.” Id. at 86. Indeed, the BIA cited
to the California Supreme Court’s express disavowal of
considering nude dancing a violation of § 314(1), and Cortes
Medina’s failure to show that there is a realistic probability
that California would apply § 314(1) to conduct not
involving moral turpitude, to conclude that a realistic
probability did not exist. Id. at 85–86 (citing Morris v.
Municipal Court, 652 P.2d 51, 59, n.13 (Cal. 1982)).
Therefore, the BIA concluded that a violation of § 314(1) is
categorically a CIMT. Id. at 86.

Although Cortes Medina reviewed the same California
state cases Nunez considered, the BIA arrived at a different
conclusion because its generic definition of a CIMT is
broader than the definition Nunez adopted. In other words,
because Cortes Medina concluded that “lewd intent” makes
indecent exposure a CIMT, the offenses in the California
state cases discussed in Nunez as non-categorical matches of
§ 314(1) fit under the BIA’s broader definition once the BIA
identified lewd intent in each of the California cases. Id. at
84–85 (citing Archer, 119 Cal. Rptr. 2d 783, and Conway,
162 Cal. Rptr. 877).
18 BETANSOS V. BARR

3.

Under Brand X, we must defer to the BIA’s
interpretation of CIMT in Cortes Medina unless its
conclusion is unreasonable. See Brand X, 545 U.S. at 982
(“A court’s prior judicial construction of a statute trumps an
agency construction otherwise entitled to Chevron deference
only if the prior court decision holds that its construction
follows from the unambiguous terms of the statute and thus
leaves no room for agency discretion.”). As is clear, the
BIA’s conclusion in Cortes Medina contradicts our decision
in Nunez. We are now tasked with deciding whether we
should defer to Cortes Medina.

In Nunez, we determined that we defer to an unpublished
BIA decision with limited reasoning “only to the extent that
it has the ‘power to persuade.’” Nunez, 594 F.3d at 1133
(citing Skidmore, 323 U.S. at 139). The BIA’s unpublished
decision there did not merit deference because we reviewed
a decision that only provided one paragraph of analysis
containing an unsupported statement “that because § 314
requires a sexual motivation, it is a crime of moral
turpitude.” Id.

Unlike in Nunez, we are presented with Cortes Medina’s
analysis explaining how the BIA arrived at its generic
definition of moral turpitude. The key difference between
Nunez and Cortes Medina is the BIA’s conclusion that the
generic definition of moral turpitude in Nunez is too narrow.
Cortes Medina, 26 I. & N. Dec. at 84. Instead, according to
the BIA, the defining characteristic of a CIMT in the
indecent exposure context is whether the offense conduct
includes “lewd intent.” Id. at 83. The BIA arrived at this
conclusion in Cortes Medina after considering BIA case law
and supported it by reviewing California state court cases.
Id. at 83–86. The BIA also explained why violations of
 BETANSOS V. BARR 19

§ 314(1) are a categorical match to its generic definition of a
CIMT by reviewing the same cases we considered in Nunez.
Cortes Medina does not misrepresent these authorities, its
analysis is reasoned and thorough, and it relies on published
BIA authority. Accordingly, we cannot say that the BIA’s
decision is unreasonable. Cf. Mellouli v. Lynch, 135 S. Ct.
1980, 1989 (2015) (holding that the BIA’s decision was not
owed deference because it “makes scant sense”); Rivera,
816 F.3d at 1071 (holding that the BIA’s decision was not
entitled to deference where it provided “no reasoning
whatsoever”); Coquico v. Lynch, 789 F.3d 1049, 1052–53
(9th Cir. 2015) (holding that the BIA’s decision was not
entitled to deference where it misunderstood the elements of
a crime under California law); Uppal v. Holder, 605 F.3d
712, 715 (9th Cir. 2010) (“Because the BIA failed to identify
the elements of § 268 [aggravated assault] correctly, its
CIMT analysis, in which it compares the elements it has
identified to the generic definition of moral turpitude, is
misdirected and so merits no deference from this Court.”).

Moreover, the fact that the BIA intended to provide an
interpretation of moral turpitude in the indecent exposure
context in Cortes Medina provides further support for
deferring to Cortes Medina. See Lagandaon v. Ashcroft,
383 F.3d 983, 987 (9th Cir. 2004) (“As long as the BIA
intended to issue an interpretation of a statute it enforces, its
interpretation of ambiguities in that statute is generally
accorded deference under [Chevron].” (internal quotation
marks omitted)); Cortes Medina, 26 I. & N. Dec. at 81
(invoking Chevron to determine whether a violation of
§ 314(1) is a CIMT). In reaching this decision, we recognize
that we defer to the BIA because it has exercised its
delegated policymaking judgment, and not because it is
better situated to interpret the INA. Garfias-Rodriguez,
702 F.3d at 515. Reasonable minds can differ when deciding
20 BETANSOS V. BARR

whether certain crimes are morally turpitudinous. Indeed, we
did so in Nunez. However, pursuant to Brand X, we must
defer to the BIA’s decision in Cortes Medina.

C.

Having concluded that we must defer to the BIA’s
decision in Cortes Medina, we now consider whether our
holding applies retroactively. In Garfias-Rodriguez, we held
that when “we overturn our own precedent following a
contrary statutory interpretation by an agency authorized
under Brand X, we analyze whether the agency’s statutory
interpretation (to which we defer) applies retroactively under
the test we adopted in Montgomery Ward [&. Co., Inc. v.
FTC, 691 F.2d 1322 (9th Cir. 1982)].” Id. at 520. We
conduct this analysis on a case-by-case basis. Id.

The five-factor Montgomery Ward framework asks,

(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.

Id. at 518 (quoting Montgomery Ward, 691 F.2d at 1333).
This analysis, however, should be conducted with “the
presumption of prospectivity” that accompanies exercises of
legislative power because a court’s decision to defer to an
 BETANSOS V. BARR 21

agency’s decision under Brand X follows from the agency’s
“exercise of delegated legislative policymaking authority.”
Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1144 (10th Cir.
2016) (explaining that a court’s deference to agency
interpretations of ambiguous statutes under Brand X, even
after a court declares what the law is, is rooted in the
assumption “that Congress had delegated legislative
authority to the BIA to make a ‘reasonable’ policy choice in
the face of [] statutory ambiguity”); see also Garfias-
Rodriguez, 702 F.3d at 519 (“[B]ecause Chevron and Brand
X are grounded in the deference we owe to agency
policymaking, . . . the presumption in favor of retroactive
application” does not apply.).

1.

For the first Montgomery Ward factor, we have stated
that whether an issue is one of first impression may not be
well suited to the immigration context because this factor
was developed in the National Labor Relations Board
(“NLRB”) context, which differs significantly from
immigration. Garfias-Rodriguez, 702 F.3d at 521
(explaining that because the NLRB is a unique agency that
relies on the common-law method to adjudicate cases,
immigration petitioners are not similarly situated to litigants
in NLRB proceedings, and cases of “first impression” are
captured in the second and third Montgomery Ward factors).
Accordingly, this factor is inapplicable here.

2.

“The second and the third factors are closely
intertwined.” Id. In Garfias-Rodriguez we explained that
“these two factors will favor retroactivity if a party could
reasonably have anticipated the change in the law such that
22 BETANSOS V. BARR

the new ‘requirement would not be a complete surprise.’” Id.
(quoting Montgomery Ward, 691 F.2d at 1333–34).

The second factor favors Betansos because Cortes
Medina represents an “abrupt departure” from Nunez. Prior
to Nunez, the BIA had no published opinion addressing
whether a conviction under § 314(1) constituted a CIMT.
See Nunez, 594 F.3d at 1133 (noting that the BIA’s decision
deeming the petitioner’s § 314(1) conviction a CIMT was
“an unpublished opinion that [did] not rely on prior
precedential decisions”). In February 2010, Nunez
established, in the first precedential opinion on the issue, that
such a conviction does not constitute a CIMT. Id. at 1138.
Nunez remained the authoritative, settled policy on this issue
for almost three years, until the BIA decided Cortes Medina
in January 2013 and took the exact opposite position—that a
conviction under § 314(1) categorically does constitute a
CIMT. See Cortes Medina, 26 I. & N. Dec. at 81 (explicitly
invoking authority under Brand X to disagree with Nunez).

Cortes Medina is fairly characterized as a “complete
surprise.” Garfias-Rodriguez, 702 F.3d at 521. The
government has identified nothing that would have put
Betansos on notice that relying on Nunez was unreasonable
or risky. This is not a case where there was an ongoing
conversation or a back-and-forth between this Court and the
BIA about the proper interpretation. See Lemus v. Lynch,
842 F.3d 641, 649 (9th Cir. 2016) (“[Petitioner] was on
notice that our approach was vulnerable based upon repeated
contrary decisions, not only from the BIA but from other
circuits as well.”). Nor is this a case where the former rule
was only in place for a short period of time or the rule was
subject to ongoing challenges or revisions. See Garfias-
Rodriguez, 702 F.3d at 521–22 (discussing factors that
diminish the reasonableness of reliance, including where the
 BETANSOS V. BARR 23

rule was only in place for six months, there were “multiple
changes in the agency’s position regarding the proper rule,”
or the rule was subject to “ongoing legal challenges”).

Nunez was well-settled policy in this Circuit from
February 10, 2010, the date on which Nunez was decided,
until January 8, 2013, the date on which Cortes Medina was
decided. See Acosta-Olivarria v. Lynch, 799 F.3d 1271,
1276 (9th Cir. 2015) (holding that it was reasonable for the
petitioner to rely on a Ninth Circuit rule because the rule was
announced in a published opinion, “there was no contrary
BIA decision[,]” and “[p]eople within the Ninth Circuit
should be able to rely on our opinions in making decisions”);
see also Garfias-Rodriguez, 702 F.3d at 515 (explaining that
the former precedential Ninth Circuit rule “was authoritative
in this circuit at least until the agency issued a reasonable
interpretation to the contrary”).

In sum, Cortes Medina did not “fill a void.” Nunez had
already filled the void, years earlier. Instead, Cortes Medina
“abruptly departed” from Nunez, announcing a directly
contrary interpretation without reasonably clear warning.
Therefore, the second factor, analyzed in isolation, weighs
in Betansos’s favor.

3.

However, as noted above, the second and third factors
are closely intertwined. And, here, the third factor—the
extent to which Betansos relied on the former rule—weighs
against Betansos.

To demonstrate reliance, Betansos must identify a
specific “reliance interest.” See Garfias-Rodriguez, 702 F.3d
at 522 (finding that the third factor weighed against the
petitioner because he identified “only two specific reliance
24 BETANSOS V. BARR

interests” and neither was sufficient). In the context of a
criminal conviction that has immigration consequences, we
have held that reliance is presumed if the former, favorable
rule was in place at the time the petitioner pleaded guilty or
was convicted. Garcia-Martinez v. Sessions, 886 F.3d 1291,
1295 (9th Cir. 2018) (presuming, for purposes of
retroactivity analysis, that the petitioner was aware of the
relevant BIA interpretation at the time he pleaded guilty to
theft crimes); see also I.N.S. v. St. Cyr, 533 U.S. 289, 322
(2001) (“There can be little doubt that, as a general matter,
alien defendants considering whether to enter into a plea
agreement are acutely aware of the immigration
consequences of their convictions.”). But Betansos could not
have relied on Nunez when he pleaded guilty in 2002
because Nunez had not yet been decided.

We have also held that a petitioner’s expenditure of fees
in reliance on favorable, well-settled precedent may
constitute a sufficient reliance interest. See Acosta-
Olivarria, 799 F.3d at 1276 (holding that petitioner
reasonably relied on the Ninth Circuit rule that made him
eligible for adjustment of status because he applied for
adjustment and paid the accompanying $1,000 fee, and
“[r]etroactive application of the [BIA’s new rule] would
cause [petitioner’s] application for adjustment of status to be
denied, without any refund of the $1,000 fee”). But Betansos
does not assert that he paid fees during his immigration
proceedings in reliance on Nunez. Nor does Betansos assert
that he made strategic decisions or chose not to apply for
other forms of relief because he relied on the availability of
cancellation of removal under Nunez. See id. (petitioner
argued that he gave up the opportunity to voluntarily depart
in reliance on the former rule making him eligible for
adjustment of status).
 BETANSOS V. BARR 25

Indeed, Betansos’s entire argument regarding reliance is
that he “clearly relied” on Nunez because “at all stages of
proceedings before the IJ, until the October 31, 2013 merits
hearing, [Betansos] was statutorily eligible for relief.” In
other words, Betansos believes that “reliance” simply means
that he cited the rule during his legal proceedings. This is not
the type of specific reliance interest we have generally held
sufficient. Betansos needed to identify a specific event or
action that he took (or failed to take) in the past in reliance
on Nunez that now carries new consequences or burdens
under Cortes Medina. See Garfias-Rodriguez, 702 F.3d
at 522 (“[R]etroactivity law . . . is meant to avoid new
burdens imposed on completed acts, not all difficult choices
occasioned by new law[.]”) (quoting Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 46 (2006)). Betansos has not done
so.

In sum, although it would have been reasonable to rely
on Nunez between February 2010 and January 2013 (under
Montgomery Ward factor two), Betansos has not shown that
he in fact relied on Nunez (under Montgomery Ward factor
three).

4.

The fourth factor, the degree of the burden that a
retroactive order imposes on a party, weighs in Betansos’s
favor because “deportation alone is a substantial burden that
weighs against retroactive application of an agency
adjudication.” Garfias-Rodriguez, 702 F.3d at 523 (internal
quotation marks omitted).

5.

Finally, the statutory interest in applying a new rule tips
in the government’s favor because “non-retroactivity
26 BETANSOS V. BARR

impairs the uniformity of a statutory scheme, and the
importance of uniformity in immigration law is well
established.” Id. However, because the new rule announced
in Cortes Medina does not follow from the “plain language
of the statute,” this factor “only leans in the government’s
direction.” Id.

6.

On balance, we find that Cortes Medina should apply to
Betansos. The first factor is not in play. The fourth factor
clearly favors Betansos. The fifth factor favors the
government, but not strongly. And, although the second
factor arguably favors Betansos, we have held that factors
two and three are “intertwined.” Because factor three weighs
against Betansos in this case, we hold that overall the factors
support retroactive application against Betansos. See
Garfias-Rodriguez, 702 F.3d at 518 (noting that the overall
purpose of the Montgomery Ward test is to balance the
agency’s interest in changing its rule against the “regulated
party’s interest in being able to rely on the terms of a rule”)
(emphasis added). 6 Accordingly, the IJ properly applied
Cortes Medina and denied Betansos’s application for
cancellation of removal because Betansos is statutorily
ineligible. See 8 U.S.C. § 1229b(b)(1)(C).

IV.

We defer to the BIA’s decision in Cortes Medina that
§ 314(1) constitutes a CIMT. And we hold that Cortes

6
We note that the reliance analysis is highly fact dependent and
conducted on a case-by-case basis. See Garfias-Rodriguez, 702 F.3d
at 519–20. Although Betansos has not identified a specific reliance
interest that arose for him during the period that Nunez was well-settled
law, another petitioner might do so.
 BETANSOS V. BARR 27

Medina applies retroactively to Betansos’s case. We
therefore deny Betansos’s petition.

PETITION DENIED.

MURGUIA, Circuit Judge, specially concurring, joined by
BASTIAN, District Judge:

While Brand X requires us to defer to the BIA’s decision
in Cortes Medina in the present case, I write separately to
note a tension between the realities of criminal prosecutions
and the tools we apply in immigration cases in which we
undertake the categorical approach. This tension concerns
the requirement that petitioners show a “‘realistic
probability’ of prosecution for conduct that falls outside the
generic definition” of a crime. Chavez-Solis v. Lynch,
803 F.3d 1004, 1009 (9th Cir. 2015) (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

The Supreme Court has clarified that in conducting the
categorical inquiry:

[T]o find that a state statute creates a crime
outside the generic definition of a listed crime
in a federal statute requires more than the
application of legal imagination to a state
statute’s language. It requires a realistic
probability, not a theoretical possibility, that
the State would apply its statute to conduct
that falls outside the generic definition of a
crime.

Duenas-Alvarez, 549 U.S. at 193. We have explained that
petitioners can make the requisite “realistic probability”
28 BETANSOS V. BARR

showing by pointing to state court decisions that apply the
statute to broader conduct than permitted in the generic
definition of a crime or by looking at the text of the state
statute itself. See Chavez-Solis, 803 F.3d at 1009–10.

However, a gap remains in the two approaches we have
so far endorsed for demonstrating that a “realistic
probability” of prosecution exists. The vast majority—and
nearly all—of criminal cases are resolved through plea
bargains. 1 These agreements between prosecutors and
defendants are not published, nor are they readily accessible
for review, yet they would illuminate the possibly broader
conduct for which individuals are prosecuted pursuant to
various state statutes. If we are to determine accurately
whether there is a “realistic probability” that a state would
charge an offense for broader conduct than that permitted by
the generic definitions of crimes, accounting for the vast
majority of criminal prosecutions makes sense. We currently
lack a mechanism for considering criminal plea bargains
when conducting a categorical analysis. However, it is worth
exploring how courts can account for plea deals. Developing
a mechanism for considering what conduct prosecutors
charge and results in defendants accepting pleas may be

1
See, e.g., United States v. Booker, 543 U.S. 220, 273–74 (2005)
(Stevens, J., dissenting in part) (noting that over 95 percent of criminal
prosecutions end in a plea bargain); U.S. Sentencing Comm’n, Overview
of Federal Criminal Cases, Fiscal Year 2017, at 5 (2018),
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/r
esearch-publications/2018/FY17_Overview_Federal_Criminal_Cases.p
df (“In fiscal year 2017, the vast majority of offenders (97.2 [percent])
pleaded guilty. This high rate has been consistent for more than
15 years.”); Judicial Council of Cal., Court Statistics Report, at 114
(2016), http://www.courts.ca.gov/documents/2016-Court-Statistics-
Report.pdf (in California, 96.8 percent of state criminal felony cases
were resolved before trial, including 79.9 percent guilty pleas).
 BETANSOS V. BARR 29

particularly helpful in cases such as this one where the BIA
relies on decades-old cases to assess whether present-day
conduct is morally turpitudinous. See Matter of Cortes
Medina, 26 I. & N. Dec. 79, 82–83 (2013) (discussing BIA
decisions from 1944, 1956, and 1965 in analyzing what
makes indecent exposure a crime of moral turpitude).
Therefore, we should be careful to consider all information
that could help us develop a full picture of what conduct
states prosecute under particular statutes.