Joel Silva v. Merrick Garland

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
MERRICK B. GARLAND, Attorney
General,
Respondent. ORDER AND
OPINION

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

Submitted April 16, 2020*
San Francisco, California

Filed March 30, 2021

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
Judges, and Ivan L.R. Lemelle, District Judge.**

*
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. GARLAND

Order;
Opinion by Judge Ikuta;
Concurrence by Judge Berzon

SUMMARY***

Immigration

The panel filed: 1) an order withdrawing the opinion and
concurring opinion appearing at 965 F.3d 724 (9th Cir. 2020),
denying the petition for rehearing en banc as moot, and
providing that the parties may file petitions for rehearing and
hearing en banc in response to the new opinion; 2) a new
opinion denying Joel Empleo Silva’s petitions for review of
decisions of the Board of Immigration Appeals; and 3) a new
concurring opinion. In the new opinion, the panel held that
the BIA did not err in concluding that 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.

Based on this court’s binding precedent, the panel
concluded that a violation of section 484(a) constitutes a
crime involving moral turpitude. In outlining the relevant
background, the panel observed that the BIA did not
conclusively hold that a theft offense may involve moral
turpitude even if it does not require the accused to intend a

***
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. GARLAND 3

literally permanent taking until Matter of Diaz-Lizarraga,
26 I. & N. Dec. 847 (BIA 2016), and that this court
subsequently concluded, in Garcia-Martinez v. Sessions,
886 F.3d 1291 (9th Cir. 2018), that the new rule announced
in Diaz-Lizarraga did not apply retroactively to the petitioner
in that case.

The panel first considered whether the BIA’s decision in
this case would be correct even if the new rule in Diaz-
Lizarraga did not apply retroactively to Silva. Accordingly,
the panel addressed whether section 484(a) was an offense
involving moral turpitude under the law as it existed before
Diaz-Lizarraga, observing that the California Supreme Court,
in People v. Avery, 27 Cal. 4th 49 (2002), 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, both before and after
Avery, this court consistently held that section 484(a) was a
crime involving moral turpitude, but that the cases after Avery
did not acknowledge that section 484(a) did not necessarily
require an intent to take property permanently, and therefore
would not be an offense involving moral turpitude for
immigration purposes before Diaz-Lizarraga was decided.

Nevertheless, the panel concluded it was bound by
precedent, explaining that 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 also explained that, because Avery predated
cases from this court holding that section 484(a) is a crime
involving moral turpitude, there was no intervening
controlling decision on state law. Accordingly, the panel
concluded it must hold that the BIA did not err in concluding
that Silva’s section 484(a) convictions made him removable
4 SILVA V. GARLAND

for having been convicted of two or more crimes involving
moral turpitude, regardless whether Diaz-Lizarraga applied
retroactively to Silva.

As to Silva’s motion to reopen, the panel held that the
BIA did not abuse its discretion in denying Silva’s motion on
the ground that 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
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

Manohar Raju, Public Defender; Matt Gonzalez, Chief
Attorney; Francisco Miguel Ugarte, Attorney; Office of the
Public Defender, San Francisco, California; Brian P.
Goldman, Orrick Herrington & Sutcliffe LLP, San Francisco,
California; Jennifer M. Keighley, Orrick Herrington &
Sutcliffe LLP, New York, New York; Ethan P. Fallon and
 SILVA V. GARLAND 5

Katherine M. Kopp, Orrick Herrington & Sutcliffe LLP,
Washington, D.C.; for Petitioner.

Jeffrey Bossert Clark, Acting Assistant Attorney General;
John W. Blakeley, Assistant Director; Bryan S. Beier, Senior
Litigation Counsel; Christina P. Greer, Trial Attorney; Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.

Philip L. Torrey, Supervising Attorney; Lena Melillo and Eric
Noble-Marks, Law Students, Crimmigation Clinic, Harvard
Law School, Cambridge, Massachusetts, for Amici Curiae
Florence Immigrant & Refugee Rights Project and Immigrant
Defense Project.

Jose H. Varela, Public Defender; Rachael Keast, Deputy
Public Defender; Marin County Office of the Public
Defender, San Rafael, California; for Amici Curiae California
Public Defender’s Association, Marin County Office of the
Public Defender, Los Angeles County Office of the Public
Defender, Santa Clara County Office of the Public Defender,
Alameda County Office of the Public Defender, Contra Costa
County Office of the Public Defender, Fresno County Office
of the Public Defender, Ventura County Office of the Public
Defender, Sonoma County Office of the Public Defender, and
Yolo County Office of the Public Defender.

Charles Roth, National Immigrant Justice Center, Chicago,
Illinois, for Amicus Curiae National Immigrant Justice
Center.

Jerome Mayer-Cantú, Oakland, California, for Amici Curiae
Law Professors and Clinicians.
6 SILVA V. GARLAND

Kari Hong, Ninth Circuit Appellate Project, Boston College
Law School, Newton, Massachusetts, for Amicus Curiae
Immigrant Legal Resource Center.

ORDER

The opinion and concurring opinion filed July 10, 2020,
and appearing at 965 F.3d 724 (9th Cir. 2020), are withdrawn.
They may not be cited by or to this court or any district court
of the Ninth Circuit.

A new opinion is filed simultaneously with the filing of
this order, along with a concurring opinion. The petition for
rehearing en banc is denied as moot. The parties may file
petitions for rehearing and petitions for rehearing en banc in
response to the new opinion, as allowed by the Federal Rules
of Appellate Procedure.

OPINION

IKUTA, Circuit Judge:

The petitioner here was convicted three times of petty
theft under section 484(a) of the California Penal Code. The
Board of Immigration Appeals (BIA) did not err in
concluding these convictions involved moral turpitude. See,
e.g., Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 (9th Cir.
2009). Therefore, the BIA did not abuse its discretion in
holding that petitioner was removable for having committed
two or more crimes involving moral turpitude. 8 U.S.C.
 SILVA V. GARLAND 7

§ 1227(a)(2)(A)(ii). We also hold that the BIA did not abuse
its discretion in denying the petitioner’s motion to reopen.

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).
8 SILVA V. GARLAND

§ 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 for two
reasons. First, it held that a violation of section 484(a) was
categorically a crime involving moral turpitude because the
Ninth Circuit had “repeatedly held that it is.” (citing Castillo-
Cruz v. Holder, 581 F.3d at 1160; Flores Juarez v. Mukasey,
530 F.3d 1020, 1022 (9th Cir. 2008) (per curiam); United
States v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir.
1999)).

Second, the BIA held that a violation of section 484(a)
was also a crime involving moral turpitude under BIA
precedent. It rejected Silva’s argument that under California
law, a violation of section 484(a) did not require the accused
to intend a literally permanent deprivation of the owner’s
property, while under BIA precedent, a theft involving moral
turpitude required such an intent. The BIA held that this
argument was based on a misinterpretation of earlier BIA
decisions “holding that moral turpitude does not inhere in
‘joyriding’ and similar offenses” that did not constitute theft
or larceny at common law. The BIA clarified that “moral
turpitude necessarily inheres in offenses constituting theft or
larceny as those terms were understood at common law,” and

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).
 SILVA V. GARLAND 9

common law larceny did not include an intent to cause a
literally permanent deprivation of a person’s property.
Therefore, an “offender commits a [crime involving moral
turpitude] whenever he takes the property of another with the
intention of disposing of the property in a manner that
permanently deprives the owner of its value; the baseness of
such an offense is not mitigated by the offender’s intention to
return the property to the owner after its value has been
vitiated.” (emphasis added). Accordingly, the BIA
reaffirmed that a violation of section 484(a) is a categorical
crime involving moral turpitude.

The BIA expressed no opinion on Silva’s further
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.
10 SILVA V. GARLAND

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),
applies here. He is mistaken. The criminal-alien bar limits our
jurisdiction “to review any final order of removal against an alien who is
 SILVA V. GARLAND 11

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 case,

removable by reason of having committed” various criminal offenses,
including certain 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). Because Silva’s petty-theft convictions
were not crimes for which such a sentence may be imposed, see Rusz v.
Ashcroft, 376 F.3d 1182, 1185 (9th Cir. 2004), the criminal-alien bar is not
applicable here.
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.
12 SILVA V. GARLAND

“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

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. GARLAND 13

adopted a different approach. Because the phrase “crimes
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.
See Marmolejo-Campos, 558 F.3d at 910–11.

Using this method of interpretation, the BIA had
determined that theft offenses involving moral turpitude are
a subset of theft offenses defined more generally. The BIA
has defined a generic theft offense 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). In this
context, a “theft offense” is 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)).

The BIA’s cases defining theft crimes involving moral
turpitude, however, are more nuanced. In several cases from
the 1940s, the BIA concluded that the offense of joyriding,
which could be committed with the intent to deprive an owner
of a car for a temporary period without intent to steal, did not
involve moral turpitude. Matter of D-, 1 I. & N. Dec. 143,
145 (BIA 1941); Matter of H-, 2 I. & N. Dec. 864, 866 (BIA
1947); see also Matter of P-, 2 I. & N. Dec. 887, 887 (BIA
14 SILVA V. GARLAND

1947). The BIA reasoned 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. at 145, and that “before the crime of theft
or stealing is deemed one involving moral turpitude” an
offense “must be one which involves a permanent taking as
distinguished from a temporary one,” Matter of H-, 2 I. & N.
Dec. at 865.

Despite these joyriding cases, the BIA did not
conclusively resolve whether 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). In Jurado-
Delgado, the petitioner argued that his offense of conviction,
retail theft, was not a crime involving moral turpitude
because “the statute does not require an intent to permanently
deprive the owner of the use or benefit of the merchandise.”
Id. The BIA stated it “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.” Id. Instead, the BIA
held it was reasonable to assume that the taking was with the
intention of retaining the merchandise permanently. Id.
at 33–34; see also Matter of Grazley, 14 I. & N. Dec. 330,
333 (BIA 1973) (treating a statute that did not require proof
that a taking was permanent as divisible, and presuming that
the accused intended the permanent taking of property).

Against this backdrop, Matter of Diaz-Lizarraga
reexamined the elements of a theft offense involving moral
turpitude. 26 I. & N. Dec. at 850. In doing so, the BIA
explained that a “careful examination” of its “early cases
 SILVA V. GARLAND 15

reflects 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.” Id. The BIA noted that its early decisions
were aimed at excluding joyriding or other short-term and de
minimis takings of property, id. at 853–54, and did not
address other sorts of temporary takings, such as those that
“appropriate[d] a major portion of [the property’s] economic
value,” id. at 848, 851–52. 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 that of 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 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.

The BIA recognized that its decisions in Matter of
Grazley and Matter of Jurado-Delgado attempted to “finesse”
the distinction between de minimis takings and “those more
serious cases in which property is taken ‘temporarily’ but
returned damaged or after its value or usefulness to the owner
has been vitiated” by “indulging a commonsense
16 SILVA V. GARLAND

‘assumption’ that in cases involving a theft of cash or
merchandise from a retail establishment, the offender’s intent
was to permanently deprive the owner of the cash or
merchandise.” Id. at 854 & n.11. The BIA approved the
rulings in those cases, but noted that given the “strictures of
the categorical approach” in recent Supreme Court cases, it
was necessary to update the moral turpitude standard “to
more accurately distill the state of the criminal law in this
area.” Id. at 854 n.11.

We subsequently concluded that Matter of Diaz-
Lizarraga’s “decision to abandon the literally-permanent
deprivation test was a rather abrupt change in the law.”
Garcia-Martinez v. Sessions, 886 F.3d 1291, 1295 (9th Cir.
2018). Garcia-Martinez acknowledged that the BIA had
deviated from the permanent-deprivation test “from time to
time,” but held that “the BIA did not overturn the requirement
that a taking must be literally permanent” until it decided
Matter of Diaz-Lizarraga. Id.

Having reached this conclusion, Garcia-Martinez asked
whether the retroactive application of Diaz-Lizarraga made
a difference to the petitioner in that case. Garcia-Martinez
concluded that, because the petitioner’s crime of conviction
under Oregon law included temporary takings, it would not
have qualified as a theft offense involving moral turpitude but
for Diaz-Lizarraga’s new rule, id. at 1295–96. As a result,
“[i]f the new rule [did] not apply retroactively, the BIA’s
decision in [that] case was in error.” Id. at 1294 & n.4.

Because the BIA’s ruling could not stand unless the
agency’s new rule applied retroactively, Garcia-Martinez
turned to the retroactivity question. In order to determine
whether Diaz-Lizarraga could be applied retroactively to the
 SILVA V. GARLAND 17

petitioner in that case, Garcia-Martinez had to apply our five-
factor test for determining when rules promulgated through
agency adjudication are retroactive. See Montgomery Ward
& Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982); see also
Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir.
2007). This test must be applied individually to the petitioner
at issue. “In every case in which we have applied the
Montgomery Ward test, we have done so on a case-by-case
basis, for example, by analyzing whether a petitioner actually
relied on a past rule, or by concluding that retroactivity as
applied is impermissible.” Garfias-Rodriguez v. Holder,
702 F.3d 504, 519 (9th Cir. 2012) (en banc).

Applying the Montgomery Ward test, Garcia-Martinez
held that the new rule announced in Matter of Diaz-Lizarraga
did not apply to the petitioner in the case before it, in part
because we presumed that the petitioner would have relied on
the BIA’s prior rule that temporary takings did not constitute
thefts involving moral turpitude. 886 F.3d at 1295–96. No
Ninth Circuit case or Oregon state court decision affected the
analysis of whether petitioner’s reliance on the BIA’s pre-
Diaz-Lizarraga case law was reasonable. Cf. Acosta-
Olivarria v. Lynch, 799 F.3d 1271, 1276 (9th Cir. 2015)
(holding, for purposes of the Montgomery Ward test, that the
petitioner had reasonably relied on a Ninth Circuit decision
that was in tension with a prior BIA decision).

B

Following Garcia-Martinez’s lead, we first consider
whether the BIA’s decision in this case—that petitioner’s
conviction of a section 484(a) offense is a theft offense
involving moral turpitude—would be correct even if the new
rule in Matter of Diaz-Lizarraga did not apply retroactively
18 SILVA V. GARLAND

to this petitioner. In order to make such a determination, we
must determine whether section 484(a) was a theft offense
involving moral turpitude under our law as it existed before
Matter of Diaz-Lizarraga.

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 People v. Davis, 19 Cal. 4th 301,
318 (1998). 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, 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.

After Davis, we held that a conviction under section
484(a) for petty theft qualified as a crime involving moral
 SILVA V. GARLAND 19

turpitude. See Esparza-Ponce, 193 F.3d at 1136–37.
Esparza-Ponce explained that the BIA had already held that
“petty larceny is a crime involving moral turpitude.” Id.
at 1136.

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).

In 2002, the California Supreme Court resolved the
tension between Marquez and Zangari by adopting 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.

After Avery was decided, we continued to rely on
Esparza-Ponce. See Castillo-Cruz, 581 F.3d at 1159; Flores
Juarez, 530 F.3d at 1022. 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
20 SILVA V. GARLAND

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). Thus, we have
consistently held that a conviction under section 484(a) is a
crime involving moral turpitude, and the BIA has never held
to the contrary, despite making changes to its generic
definition of a theft offense. See, e.g., In re Kochlani, 24 I. &
N. Dec. 128, 129 (BIA 2007) (“[T]here is no dispute that the
California offense of grand theft is a crime involving moral
turpitude.” (citing Esparza-Ponce, 193 F.3d at 1136–37)); In
re Kotliar, 24 I. & N. Dec. 124, 125 (BIA 2007) (similar).

In analyzing a theft offense under section 484(a),
Esparza-Ponce, Flores Juarez, and Castillo-Cruz failed to
consider the difference 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. In other words, our cases did not
acknowledge that section 484(a) did not necessarily require
an intent to take property permanently, and therefore that
such an offense would not be a theft offense involving moral
turpitude for immigration purposes before Diaz-Lizarraga
was decided.

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
 SILVA V. GARLAND 21

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
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. Accordingly, we must hold
that the BIA did not err in concluding 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), regardless whether Diaz-Lizarraga
applies retroactively to Silva.7

7
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
22 SILVA V. GARLAND

Because we conclude that, based on our binding
precedent, a violation of section 484(a) constitutes a crime
involving moral turpitude, we need not address the question
whether Matter of Diaz-Lizarraga is retroactively applicable
in this case and need not apply the Montgomery Ward test to
answer that question. See Garcia-Martinez, 886 F.3d
at 1295–96.

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.

persuasively.” United States v. Ramos-Medina, 706 F.3d 932, 939 (9th
Cir. 2013).
 SILVA V. GARLAND 23

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).8

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

8
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
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).
24 SILVA V. GARLAND

(quoting Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)).9
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
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).

9
“[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. GARLAND 25

“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”
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.
26 SILVA V. GARLAND

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
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
 SILVA V. GARLAND 27

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).