Manuel Olivas-Motta v. Matthew Whitaker , 910 F.3d 1271 ( 2018 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MANUEL JESUS OLIVAS-MOTTA,                No. 14-70543
    AKA Manuel Jesus Olivas-Notta,
    Petitioner,        Agency No.
    A021-179-705
    v.
    MATTHEW G. WHITAKER, Acting                OPINION
    Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted September 10, 2018
    San Francisco, California
    Filed December 19, 2018
    Before: J. Clifford Wallace, Johnnie B. Rawlinson,
    and Paul J. Watford, Circuit Judges.
    Opinion by Judge Wallace;
    Dissent by Judge Watford
    2                OLIVAS-MOTTA V. WHITAKER
    SUMMARY *
    Immigration
    The panel denied Manuel Jesus Olivas-Motta’s petition
    for review of a decision of the Board of Immigration Appeals
    that found him removable for having committed two crimes
    involving moral turpitude.
    Olivas-Motta, a lawful permanent resident, was placed
    in removal proceedings based on his convictions for felony
    endangerment under Arizona Revised Statutes § 13-1201
    and facilitation to commit unlawful possession of marijuana
    for sale. The immigration judge concluded (and the parties
    did not dispute before this court) that the facilitation offense
    was a crime involving moral turpitude. The immigration
    judge and Board determined that felony endangerment was
    neither categorically a crime involving moral turpitude nor a
    crime involving moral turpitude under the modified
    categorical approach, but examined evidence beyond the
    record of conviction and found the offense involved moral
    turpitude.
    While Olivas-Motta’s petition for review was pending
    before this court, the Board published In re Leal, 
    26 I. & N. Dec. 20
     (B.I.A. 2012) (Leal I), which held that felony
    endangerment under Arizona Revised Statutes § 13-1201
    was categorically a crime involving moral turpitude, and this
    court upheld that determination in Leal v. Holder, 
    771 F.3d 1140
     (9th Cir. 2014) (Leal II). Because the Board had not
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    OLIVAS-MOTTA V. WHITAKER                    3
    decided Olivas-Motta’s appeal on the ground that his offense
    was categorically a crime involving moral turpitude, this
    court did not consider Leal I’s relevance to Olivas-Motta’s
    petition, but granted the petition and remanded because an
    immigration judge and the Board are confined to the record
    of conviction in this context. On remand, the Board
    dismissed Olivas-Motta’s appeal, applying Leal I to
    conclude that felony endangerment was categorically a
    CIMT.
    The panel rejected Olivas-Motta’s argument that Leal II
    was wrongly decided, explaining that the panel has no power
    to overrule circuit precedent.
    The panel also rejected Olivas-Motta’s argument that the
    Board’s application of Leal I was impermissibly retroactive.
    Concluding that a change in law must have occurred before
    this court’s retroactivity analysis from Montgomery Ward &
    Co., Inc. v. FTC, 
    691 F.2d 1322
     (9th Cir. 1982), is
    implicated, the panel held that Montgomery Ward is only
    applicable when an agency consciously overrules or
    otherwise alters its own rule or regulation, or expressly
    considers and openly departs from a circuit court decision.
    Applying this standard to Olivas-Motta’s case, the panel
    concluded that there was no change in law raising
    retroactivity concerns: before Olivas-Motta pleaded guilty,
    the Board had never determined in a precedential opinion
    whether felony endangerment under Arizona Revised
    Statutes § 13-1201 was a crime involving moral turpitude
    and, therefore, the application of the statute was simply
    unclear until Leal I.
    Olivas-Motta also contended that the Attorney General’s
    decision in In re Silva-Trevino, 24 I. & N. 687 (A.G. 2008),
    4              OLIVAS-MOTTA V. WHITAKER
    abolished the requirement that a crime with a mens rea of
    recklessness could not constitute a crime involving moral
    turpitude unless the offense presented an aggravating factor.
    The panel disagreed, explaining that the aggravating-factor
    analysis from earlier cases is harmonious with the later
    approach in Silva-Trevino, and concluding that, as to
    Arizona felony endangerment, Silva-Trevino did not change
    the law.
    Next, the panel rejected Olivas-Motta’s argument that,
    due to both claim and issue preclusion, the Board could not
    revisit on remand whether his offense was categorically a
    crime involving moral turpitude. Although Olivas-Motta
    had not exhausted the issue of preclusion, the panel
    concluded it had jurisdiction to consider the claim because
    Olivas-Motta did not have an opportunity to argue it until the
    Board issued its second decision. On the merits, the panel
    held that there was no error because both forms of preclusion
    require the existence of a separate action, but the Board on
    remand was acting within the same, single proceeding. The
    panel also concluded that the rule of mandate, which
    prohibits an agency from deviating from a court’s remand
    order, did not foreclose the Board’s consideration of whether
    the statute was categorically a crime involving moral
    turpitude because nothing in the remand restricted the Board
    from considering that issue.
    Finally, the panel rejected Olivas-Motta’s argument that
    
    8 U.S.C. § 1227
    (a)(2)(A)(ii), under which Olivas-Motta was
    found to be removable for having committed crimes
    involving moral turpitude, is unconstitutionally vague,
    explaining that the Supreme Court and this court have
    repeatedly rejected that vagueness challenge and that this
    panel lacked authority to reconsider this court’s prior
    decisions.
    OLIVAS-MOTTA V. WHITAKER                    5
    Dissenting, Judge Watford disagreed with the panel’s
    conclusion that Leal I was not a change in law necessary to
    trigger retroactivity analysis. Judge Watford wrote that,
    under the Board’s standards for determining which
    recklessness offenses were crimes involving moral turpitude
    in effect at the time Olivas-Motta pleaded guilty, there was
    at least a realistic chance that his endangerment offense
    would not be classified as a crime involving moral turpitude.
    However, after the Attorney General’s decision in Silva-
    Trevino, it was nearly certain that his offense would be
    classified as a crime involving moral turpitude, and the
    Board’s decision in Leal I eliminated what little uncertainty
    remained. According to Judge Watford, this was a change
    in the governing standard that attached new legal
    consequences to events completed before its enactment.
    Applying the retroactivity test from Montgomery Ward,
    Judge Watford concluded that the balance of factors weighs
    in favor of Olivas-Motta. Judge Watford would grant the
    petition for review and remand so that the agency could
    conduct the analysis in the first instance.
    COUNSEL
    K. Lee Hartzler (argued), San Diego, California, for
    Petitioner.
    Sarah A. Byrd (argued) and Keith I. McManus, Senior
    Litigation Counselors; Cindy S. Ferrier, Assistant Director;
    Civil Division, United States Department of Justice,
    Washington, D.C.; for Respondent.
    6              OLIVAS-MOTTA V. WHITAKER
    OPINION
    WALLACE, Circuit Judge:
    An immigration judge (IJ) ordered Manuel Jesus Olivas-
    Motta’s removal because he had been convicted of two
    crimes involving moral turpitude (CIMTs). The Board of
    Immigration Appeals (Board) dismissed Olivas-Motta’s
    appeal from the IJ’s order. Olivas-Motta now petitions for
    review of the Board’s dismissal. We have jurisdiction under
    
    8 U.S.C. § 1252
    , and we deny the petition.
    I.
    Olivas-Motta is a citizen of Mexico who was admitted to
    the United States of America as a lawful permanent resident
    on or about October 12, 1976. He has since been convicted
    of two felonies. On August 11, 2003, he was convicted of
    facilitation to commit unlawful possession of marijuana for
    sale in violation of Arizona Revised Statutes §§ 13-1004, 13-
    3405. On November 26, 2007, he was convicted of felony
    endangerment under Arizona Revised Statutes § 13-1201.
    On April 2, 2009, the Department of Homeland Security
    initiated removal proceedings against Olivas-Motta under
    
    8 U.S.C. § 1227
    (a)(2)(A)(ii) as an alien convicted of two
    CIMTs. The IJ determined, and the parties no longer dispute,
    that the facilitation offense was a CIMT. As to the
    endangerment offense, the IJ determined that it was neither
    categorically a CIMT nor a CIMT under the modified
    categorical approach. However, the IJ examined evidence
    beyond the record of conviction, including police reports,
    and determined that the offense involved moral turpitude.
    The IJ then sustained the charge of removal. The Board
    relied on the same grounds to conclude that the
    OLIVAS-MOTTA V. WHITAKER                     7
    endangerment offense was a CIMT and dismissed Olivas-
    Motta’s appeal.
    Olivas-Motta petitioned for review of the Board’s
    decision. While the petition was pending, the Board
    published an opinion holding that felony endangerment
    under Arizona Revised Statutes § 13-1201 was categorically
    a CIMT. In re Leal, 
    26 I. & N. Dec. 20
    , 27 (B.I.A. 2012)
    (Leal I). We upheld that determination. Leal v. Holder,
    
    771 F.3d 1140
    , 1148–49 (9th Cir. 2014) (Leal II). But we
    declined to consider Leal I’s relevance to Olivas-Motta in
    his first petition because the Board had not originally
    decided his appeal on the ground that felony endangerment
    was categorically a CIMT. Olivas-Motta v. Holder, 
    746 F.3d 907
    , 917 (9th Cir. 2013), as amended (April 1, 2014); see
    also Ali v. Holder, 
    637 F.3d 1025
    , 1029 (9th Cir. 2011)
    (confining our review to grounds relied upon by the Board).
    Instead, we granted the petition and remanded because “an
    IJ and the [Board] are confined to the record of conviction in
    determining whether an alien has been convicted of a
    CIMT.” Olivas-Motta, 746 F.3d at 908. On remand, the
    Board applied Leal I to conclude that felony endangerment
    was categorically a CIMT and dismissed Olivas-Motta’s
    appeal.
    Olivas-Motta again petitions for review of the Board’s
    dismissal. He argues that the Board’s application of Leal I
    was impermissibly retroactive, that preclusion bars the
    Board from reconsidering whether felony endangerment was
    categorically a CIMT, and that the phrase CIMT is
    unconstitutionally vague.
    Olivas-Motta also argues that we are not bound by Leal
    II because it was wrongly decided. But this panel has no
    power to overrule circuit precedent. Miller v. Gammie,
    
    335 F.3d 889
    , 900 (9th Cir. 2003) (en banc) (holding that
    8              OLIVAS-MOTTA V. WHITAKER
    circuit precedent may be overturned only en banc, subject to
    exceptions not applicable here).
    II.
    We review constitutional claims and questions of law de
    novo. Latter-Singh v. Holder, 
    668 F.3d 1156
    , 1159 (9th Cir.
    2012); see also 
    8 U.S.C. § 1252
    (a)(2)(C), (D). Whether a
    new agency interpretation may be applied retroactively is a
    question of law. See Garfias-Rodriguez v. Holder, 
    702 F.3d 504
    , 514–15 (9th Cir. 2012) (en banc). Whether preclusion
    is available is also a question of law. Oyeniran v. Holder,
    
    672 F.3d 800
    , 806 (9th Cir. 2012), as amended (May 3,
    2012).
    III.
    When an agency decides to create a new rule through
    adjudicatory action, that new rule may apply retroactively to
    regulated entities. SEC v. Chenery Corp., 
    332 U.S. 194
    , 203
    (1947). “[R]etroactivity must be balanced against the
    mischief of producing a result which is contrary to a
    statutory design or to legal and equitable principles.” 
    Id.
     “If
    that mischief is greater than the ill effect of the retroactive
    application of a new standard, it is not the type of
    retroactivity which is condemned by law.” 
    Id.
    We have applied this rule in the immigration context to
    determine whether Board decisions may apply retroactively.
    See, e.g., Garfias-Rodriguez, 702 F.3d at 515–23; Miguel-
    Miguel v. Gonzales, 
    500 F.3d 941
    , 950–53 (9th Cir. 2007).
    In such cases, we have relied on the five-factor test set forth
    in Montgomery Ward & Co., Inc. v. FTC, 
    691 F.2d 1322
    ,
    1333 (9th Cir. 1982). Olivas-Motta argues that, in this case,
    the Montgomery Ward factors strongly counsel against
    retroactively applying Leal I to his case, and that the Board
    OLIVAS-MOTTA V. WHITAKER                     9
    accordingly erred in concluding that Arizona felony
    endangerment is categorically a CIMT.
    A.
    As a threshold matter, we must address whether
    retroactivity is implicated by Leal I. The government argues
    that a change in law is a prerequisite to Montgomery Ward
    balancing, and that we should not conduct a retroactivity
    analysis because no change in law occurred. Olivas-Motta
    argues that the Montgomery Ward factors themselves
    account for whether a change in law has occurred, and that
    Montgomery Ward balancing is therefore appropriate
    because Leal I was decided after his guilty plea.
    We conclude that a change in law must have occurred
    before Montgomery Ward is implicated. The requirement
    that the law have changed in some way is generally a settled
    principle of retroactivity analysis. 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”); Morales-Izquierdo
    v. Dep’t of Homeland Sec., 
    600 F.3d 1076
    , 1090 (9th Cir.
    2010), overruled in part on other grounds by Garfias-
    Rodriguez, 702 F.3d at 516 (“Montgomery Ward and its
    progeny deal with the problems of retroactivity created when
    an agency, acting in an adjudicative capacity, so alters an
    existing agency-promulgated rule that it deprives a regulated
    party of the advance notice to conform its conduct to the
    rule”). It would be incongruous to apply a different rule here
    because the principles animating a statute’s retroactivity —
    “fair notice, reasonable reliance, and settled expectations”
    — are equally animating in Olivas-Motta’s immigration
    proceedings. See Vartelas v. Holder, 
    566 U.S. 257
    , 273
    (2012) (quoting Landgraf v. USI Film Prod., 
    511 U.S. 244
    ,
    270 (1994)). Moreover, were we to adopt the rule that
    10               OLIVAS-MOTTA V. WHITAKER
    Montgomery Ward balancing is required regardless of
    whether a change in law has occurred, the mere existence of
    a new published decision on an issue would always trigger
    retroactivity analysis. This too is contrary to settled law on
    this issue. See Manhattan Gen. Equip. Co. v. Comm’r of
    Internal Revenue, 
    297 U.S. 129
    , 135 (1936) (holding that a
    tax regulation elaborating on a standard governed by statute
    “is no more retroactive in its operation than is a judicial
    determination construing and applying a statute to a case in
    hand”). We therefore hold that Montgomery Ward
    retroactivity analysis is only applicable when “an agency
    consciously overrules or otherwise alters its own rule or
    regulation,” or “expressly considers and openly departs from
    a circuit court decision.” 1 Garfias-Rodriguez, 702 F.3d at
    518–19.
    Olivas-Motta’s primary argument against this
    conclusion is the language of the Montgomery Ward factors.
    It is true that the second Montgomery Ward factor is
    “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.” Montgomery Ward, 
    691 F.2d at 1333
     (emphasis added) (quoting Retail, Wholesale and
    Dep’t Store Union v. NLRB, 
    466 F.2d 380
    , 390 (D.C. Cir.
    1972)). This language suggests that a change in law can
    1
    Judge Watford disagrees with our analysis and would conclude that
    a change in law occurs when the Board’s decision was not “clearly
    foreshadowed.” Diss. at 22. It is true that the Supreme Court has stated
    that a new principle of law can be established by “deciding an issue
    whose resolution was not clearly foreshadowed.” Chevron Oil Co. v.
    Huson, 
    404 U.S. 97
    , 106 (1991). But “agency decisions are not
    analogous to court decisions.” Garfias-Rodriguez, 702 F.3d at 520.
    Chevron Oil, which dealt with court decisions, is not apposite when an
    agency makes an adjudicatory decision that clarifies the scope of a
    statute it is charged with executing.
    OLIVAS-MOTTA V. WHITAKER                      11
    occur when the rule was previously unclear, and an
    adjudicatory decision brings clarity to the issue. But we must
    consider the Montgomery Ward factors in light of the general
    rules of retroactivity, which require a change of law. In
    addition, the other Montgomery Ward factors themselves
    contemplate a change from a “former rule” or “old
    standard.” See Montgomery Ward, 
    691 F.2d at 1333
     (quoting
    Retail, 
    466 F.2d at 390
    ). We therefore distinguish between
    cases where a rule, such as 
    8 U.S.C. § 1227
    (a)(2)(A)(ii),
    already exists, and an administrative decision simply
    clarifies the rule’s application, and cases where the decision
    itself would “take away or impair vested rights acquired
    under existing laws, or create a new obligation, impose a
    new duty, or attach a new disability, in respect to
    transactions or considerations already past.” Vartelas, 
    566 U.S. at 266
     (alterations omitted) (quoting Soc’y for
    Propagation of Gospel v. Wheeler, 
    22 F. Cas. 756
    , 767 (No.
    13,156) (CCNH 1814)). In the latter cases, the
    administrative decision has altered the legal consequences
    flowing from events and “considerations already past,” and
    thus changed the law. See 
    id.
     (quoting Soc’y for Propagation
    of Gospel, 22 F. Cas. at 767). But in the former, where the
    adjudicatory decision does not trigger a new obligation,
    impair a previously vested right, or attach new harm, no new
    legal consequences flow from the decision, and retroactivity
    is not implicated. The second Montgomery Ward factor is
    therefore better understood as evaluating the character of a
    change in law, once such a change has occurred, rather than
    evaluating whether the change occurred in the first instance.
    Olivas-Motta points to language in Garfias-Rodriguez
    suggesting that a change in law is not a prerequisite to
    Montgomery Ward balancing. See Garfias-Rodriguez,
    702 F.3d at 516 (“Chief Judge Kozinski . . . applies
    retroactivity principles to conclude that retroactivity analysis
    12             OLIVAS-MOTTA V. WHITAKER
    does not apply, effectively resolving the retroactivity
    question against Garfias”). We do not think Garfias-
    Rodriguez stands for the proposition Olivas-Motta believes
    it does. There was no dispute in that case that the law had
    changed; rather, the issue was how we should treat the
    unquestionable change of law of this circuit when it was
    prompted by a decision of the Board. See id. at 515–20.
    Garfias-Rodriguez did not hold that Montgomery Ward
    balancing is required when no change in law has taken place.
    B
    Applying this standard to this case, there was no change
    in law. Before Olivas-Motta’s 2007 guilty plea, the Board
    had never determined in a precedential opinion whether
    felony endangerment in Arizona was a CIMT. The Board
    had only issued unpublished decisions on the issue. See, e.g,
    In Re Carlos Mario Almeraz-Hernandez, 
    2006 WL 3203649
    , at *2 (B.I.A. Sept. 6, 2006) (holding § 13-1201 is
    not categorically a CIMT). Unpublished decisions are not
    precedential and “do not bind future parties.” Marmolejo-
    Campos v. Holder, 
    558 F.3d 903
    , 909 (9th Cir. 2009).
    Olivas-Motta therefore cannot argue that Leal I “attach[ed]
    a new disability” to his guilty plea that did not exist at the
    time he entered it. See Vartelas, 
    566 U.S. at 266
     (quoting
    Soc’y for Propagation, 22 F. Cas. at 767). Rather, 
    8 U.S.C. § 1227
    (a)(2)(A)(ii) had already created the legal
    consequences of his plea, and it was merely unclear whether
    it would apply. Leal I’s settling of that ambiguity did not
    change the law any more than “a judicial determination
    construing and applying a statute to a case in hand” would
    have. See Manhattan Gen. Equip., 
    297 U.S. at 135
    .
    Olivas-Motta counters that, notwithstanding the lack of
    a precedential opinion on Arizona felony endangerment,
    Leal I still constituted a change in law because of broader
    OLIVAS-MOTTA V. WHITAKER                    13
    changes in the law of CIMTs. According to Olivas-Motta,
    the law before 2008 was that a crime with a mens rea of
    recklessness could not constitute a CIMT unless the offense
    presented an “aggravating factor,” thus preventing Arizona
    endangerment from qualifying. But after the Attorney
    General’s decision in In re Silva-Trevino, 24 I. & N. 687
    (A.G. 2008), argues Olivas-Motta, the aggravating-factor
    requirement was abolished, thus leading to the decision in
    Leal I.
    We are not persuaded that Silva-Trevino created the
    change in law identified by Olivas-Motta. As we explained
    in Leal II, the aggravating-factor requirement “[wa]s not due
    to the reckless mens rea involved, but rather because of the
    underlying conduct; both this court and the Board have
    repeatedly stated that simple assault is, in general, not a
    CIMT.” 771 F.3d at 1148. Thus, in Olivas-Motta’s cited
    cases, the aggravating-factor analysis is harmonious with the
    Attorney General’s later approach in Silva-Trevino.
    Compare In re Fualaau, 
    21 I. & N. Dec. 475
    , 478 (B.I.A.
    1996) (“In order for an assault of the nature at issue in this
    case to be deemed a crime involving moral turpitude, the
    element of a reckless state of mind must be coupled with an
    offense involving the infliction of serious bodily injury”
    (emphasis added)), with Silva-Trevino, 24 I. & N. Dec. at
    689 n.1 (“a crime must involve both reprehensible conduct
    and some degree of scienter, whether specific intent,
    deliberateness, willfulness, or recklessness” (emphasis
    added)). The earlier Board cases and Silva-Trevino did not
    apply the aggravating-factor requirement to all recklessness
    crimes, and Silva-Trevino did not purport to overrule
    decisions holding that simple assault is not a CIMT. See Leal
    II, 771 F.3d at 1148 (stating after Silva-Trevino: “It thus
    follows that, in order for an assault to be considered a CIMT,
    there must be some additional factor involved in the specific
    14             OLIVAS-MOTTA V. WHITAKER
    offense to distinguish it from generic simple assault”). As to
    Arizona felony endangerment then, Silva-Trevino did not
    change the law.
    Olivas-Motta’s argument to the contrary relies on
    unpublished Board decisions on this matter. Olivas-Motta is
    correct that unpublished Board decisions predating Silva-
    Trevino relied on Fualaau to conclude that Arizona
    endangerment was not a CIMT. See, e.g., Almeraz-
    Hernandez, 
    2006 WL 3203649
    , at *2. Olivas-Motta is also
    correct that Leal I cited Silva-Trevino as the controlling
    framework before concluding that Arizona felony
    endangerment was categorically a CIMT. 26 I. & N. Dec. at
    21, 27. But once more, unpublished decisions “do not bind
    future parties.” Marmolejo-Campos, 
    558 F.3d at 909
    .
    Olivas-Motta’s attorney may have made a calculation that
    Arizona felony endangerment would not be considered a
    CIMT based on unpublished decisions, but Fualaau did not
    foreclose the conclusion that it was a CIMT before Silva-
    Trevino, nor did Silva-Trevino require the Board to conclude
    that it was a CIMT afterwards. The application of the statute
    was simply unclear until Leal I, at which point the published
    Board opinion resolved the issue. Put differently, when
    Olivas-Motta pleaded guilty in 2007, it was possible that his
    conviction would not be adjudicated a CIMT, but no law
    guaranteed that. Leal I’s conclusive resolution of this
    uncertainty did not create a new legal harm to Olivas-Motta
    that did not already exist.
    Because there was no change in the law raising
    retroactivity concerns, the Board did not err by applying Leal
    I to conclude that Arizona endangerment is a CIMT.
    OLIVAS-MOTTA V. WHITAKER                      15
    IV.
    Preclusion prevents parties “from contesting matters that
    they have had a full and fair opportunity to litigate,” thus
    protecting “against ‘the expense and vexation attending
    multiple lawsuits, conserv[ing] judicial resources, and
    foster[ing] reliance on judicial action by minimizing the
    possibility of inconsistent decisions.’” Taylor v. Sturgell,
    
    553 U.S. 880
    , 892 (2008) (quoting Montana v. United States,
    
    440 U.S. 147
    , 153–54 (1979)). “Under the doctrine of claim
    preclusion, a final judgment forecloses ‘successive litigation
    of the very same claim, whether or not relitigation of the
    claim raises the same issues as the earlier suit.’” 
    Id.
     (quoting
    New Hampshire v. Maine, 
    532 U.S. 742
    , 748 (2001)). Under
    the doctrine of issue preclusion, parties may not relitigate
    “‘an issue of fact or law actually litigated and resolved in a
    valid court determination essential to the prior judgment,’
    even if the issue recurs in the context of a different claim.”
    
    Id.
     (quoting New Hampshire, 
    532 U.S. at
    748–49). Olivas-
    Motta contends that, due to both types of preclusion, the
    Board could not revisit on remand whether felony
    endangerment was categorically a CIMT, after determining
    initially that it was not.
    A.
    Before we can evaluate Olivas-Motta’s argument, we
    must address whether we have jurisdiction to consider it. The
    government argues that Olivas-Motta failed to exhaust his
    administrative remedies because he did not argue preclusion
    before the Board. Olivas-Motta responds that he could not
    raise preclusion because it was not implicated until the
    Board applied Leal I to his appeal.
    We conclude that we have jurisdiction. 
    8 U.S.C. § 1252
    (d)(1) provides that a court may review a final order
    16             OLIVAS-MOTTA V. WHITAKER
    of removal only if “the alien has exhausted all administrative
    remedies available to the alien as of right.” We have held
    that “1252(d)(1) mandates exhaustion and therefore
    generally bars us, for lack of subject-matter jurisdiction,
    from reaching the merits of a legal claim not presented in
    administrative proceedings below.” Barron v. Ashcroft,
    
    358 F.3d 674
    , 678 (9th Cir. 2004). But section 1252(d)(1) by
    its terms limits the petitioner’s duty to “remedies available
    to the alien as of right.” We have thus held that we retain
    jurisdiction over petitions where the challenged agency
    action was committed by the Board after briefing was
    completed, because the only remaining administrative
    remedies for such an action were not available “as of right.”
    Alcaraz v. INS, 
    384 F.3d 1150
    , 1159–60 (9th Cir. 2004).
    In this case, after we granted Olivas-Motta’s first petition
    and remanded to the Board, Olivas-Motta was never
    provided an opportunity to argue preclusion until the Board
    issued its second decision. At that point, his only remedies
    were discretionary, and there was no higher administrative
    authority to correct the supposed error. See 
    id.
     A petition for
    review to this court was therefore proper, and section
    1252(d)(1) does not divest us of jurisdiction.
    B.
    On the merits of Olivas-Motta’s preclusion argument,
    we hold there was no error. Claim preclusion requires a final
    judgment on the merits in a separate action. Valencia-
    Alvarez v. Gonzales, 
    469 F.3d 1319
    , 1323–24 (9th Cir.
    2006). By granting Olivas-Motta’s petition for review in
    2013, his original action continued, and no separate action
    commenced. See 
    id. at 1324
    . Similarly, issue preclusion only
    applies when issues are “litigated and decided in the prior
    proceedings.” Oyeniran, 
    672 F.3d at 806
     (emphasis added).
    Multiple proceedings are a prerequisite before issue
    OLIVAS-MOTTA V. WHITAKER                      17
    preclusion can apply. See 
    id.
     Because the Board on remand
    was acting within the same proceedings as in Olivas-Motta’s
    original appeal, preclusion does not apply.
    Olivas-Motta counters this argument by citing an
    unpublished decision of this court relating to the rule of
    mandate and making preclusion arguments by analogy. This
    was also the argument that Olivas-Motta made to the Board
    on remand. We consider this argument to be a rule of
    mandate argument, rather than one of claim preclusion or
    issue preclusion. Olivas-Motta has not argued that the Board
    could not reconsider this issue because of law of the case.
    The rule of mandate is related to, but distinct from, claim
    preclusion and issue preclusion. Under the rule of mandate,
    an administrative agency may not deviate from a supervising
    court’s remand order, and the reviewing court may review
    the agency’s decision on remand “to assure that its prior
    mandate is effectuated.” Sullivan v. Hudson, 
    490 U.S. 877
    ,
    886 (1989); see also Mendez-Gutierrez v. Gonzales,
    
    444 F.3d 1168
    , 1172–73 (9th Cir. 2006) (holding that the
    rule of mandate applies to decisions of the Board on remand
    from this court). Thus, as with claim preclusion and issue
    preclusion, the rule of mandate can prevent parties from
    relitigating issues already decided. But the scope of the rule
    is limited to that which is before the court “and disposed of
    by its decree.” United States v. Thrasher, 
    483 F.3d 977
    , 981
    (9th Cir. 2007) (quoting In re Sanford Fork & Tool Co.,
    
    160 U.S. 247
    , 255 (1895)). An administrative agency may
    therefore consider on remand “any issue not expressly or
    impliedly disposed of on appeal.” Stacy v. Colvin, 
    825 F.3d 563
    , 568 (9th Cir. 2016) (quoting Odima v. Westin Tucscon
    Hotel, 
    53 F.3d 1484
    , 1497 (9th Cir. 1995)).
    Our mandate in Olivas-Motta’s first petition did not
    conclude that felony endangerment was not a CIMT, or that
    18             OLIVAS-MOTTA V. WHITAKER
    Leal I was wrongly decided. 746 F.3d at 916–17. Instead, we
    “h[e]ld only that that we [could] not deny Olivas-Motta’s
    petition based on a conclusion reached by the [Board] in a
    separate case decided two years after it decided the appeal
    now before us.” Id. at 917. Nothing in our remand restricted
    the Board from considering the import of Leal I on Olivas-
    Motta’s appeal. Accordingly, the rule of mandate did not
    foreclose the Board’s reconsideration of the issue.
    V.
    The void-for-vagueness doctrine stems from the Fifth
    Amendment’s guarantee of due process. Johnson v. United
    States, 
    135 S. Ct. 2551
    , 2556 (2015). “[T]he Government
    violates this guarantee by taking away someone’s life,
    liberty, or property under a criminal law so vague that it fails
    to give ordinary people fair notice of the conduct it punishes,
    or so standardless that it invites arbitrary enforcement.” 
    Id.
    Because “deportation is ‘a particularly severe penalty,’
    which may be of greater concern to a convicted alien than
    ‘any potential jail sentence,’” a provision of immigration law
    making an alien deportable is subject to the void-for-
    vagueness doctrine. Sessions v. Dimaya, 
    138 S. Ct. 1204
    ,
    1213 (2018) (quoting Jae Lee v. United States, 
    137 S. Ct. 1958
    , 1968 (2017)).
    Olivas-Motta argues that, even if applying Leal I to his
    appeal was not impermissibly retroactive or precluded, we
    should nonetheless grant the petition because 
    8 U.S.C. § 1227
    (a)(2)(A)(ii) itself is unconstitutionally vague. While
    he recognizes that both the Supreme Court and this court
    have repeatedly rejected that argument, see Jordan v. De
    George, 
    341 U.S. 223
    , 232 (1951); Martinez-De Ryan v.
    Sessions, 
    895 F.3d 1191
    , 1194 (9th Cir. 2018), Olivas-Motta
    contends that the Board’s interpretation of the statute has
    OLIVAS-MOTTA V. WHITAKER                   19
    expanded the meaning of “moral turpitude” to the point that
    there is no meaningful standard guiding aliens’ conduct.
    We are not persuaded that this argument is
    distinguishable from those rejected in past cases. As we
    explained in Leal II, a crime is morally turpitudinous if it
    involves a conscious decision and a resulting harm, where
    “more serious resulting harm is required” “as the level of
    conscious behavior decreases, i.e., from intentional to
    reckless conduct.” 771 F.3d at 1146 (quoting Ceron v.
    Holder, 
    747 F.3d 773
    , 783 (9th Cir. 2014) (en banc)). That
    is the standard the Board applied to evaluate Arizona felony
    endangerment, id. at 1147, and that standard is sufficiently
    meaningful to provide fair notice under our precedent.
    Martinez-De Ryan, 895 F.3d at 1193–94. To the extent
    Olivas-Motta asks us to reconsider those decisions, that is
    beyond this panel’s authority. Miller, 
    335 F.3d at 900
    .
    VI.
    The Board did not commit any of the raised legal errors
    by concluding that Olivas-Motta’s conviction for reckless
    endangerment was a crime involving moral turpitude. We
    therefore deny the petition.
    PETITION DENIED.
    20             OLIVAS-MOTTA V. WHITAKER
    WATFORD, Circuit Judge, dissenting:
    When a non-citizen is charged with a crime and deciding
    whether to plead guilty, the immigration consequences of a
    conviction are often a major consideration. For some
    defendants, preserving the chance to remain in the United
    States is more important than the length of any prison
    sentence that might be imposed. Padilla v. Kentucky,
    
    559 U.S. 356
    , 368 (2010). With that in mind, competent
    defense counsel “may be able to plea bargain creatively with
    the prosecutor in order to craft a conviction and sentence that
    reduce the likelihood of deportation, as by avoiding a
    conviction for an offense that automatically triggers the
    removal consequence.” 
    Id. at 373
    . Such plea bargains are
    mutually beneficial for the prosecution: A defendant who
    might otherwise have proceeded to trial may be persuaded to
    forgo that right in exchange for a deal that allows him to
    plead guilty to an offense that reduces the risk of removal.
    
    Id.
    An assessment of the immigration consequences
    attending a guilty plea must, of course, be based on the law
    as it exists at the time of the plea. If the law on that subject
    changes after a defendant pleads guilty, he usually cannot go
    back and undo his conviction, even if the conviction now
    carries far more serious immigration consequences than
    before. For that reason, when there is an intervening change
    in the law, we are required to assess whether the new rule
    may be applied retroactively in subsequent removal
    proceedings.
    The majority refuses to engage in that analysis because
    it concludes that no “new rule” was adopted after Manuel
    Olivas-Motta pleaded guilty. I respectfully disagree.
    OLIVAS-MOTTA V. WHITAKER                   21
    The sole issue in Olivas-Motta’s removal proceedings is
    whether reckless endangerment under Arizona Revised
    Statutes § 13-1201 constitutes a crime involving moral
    turpitude. When Olivas-Motta pleaded guilty to that offense
    in 2007, the Board of Immigration Appeals (BIA) had not
    decided in a precedential opinion whether reckless
    endangerment should be classified as a crime involving
    moral turpitude. But in 2012, long after Olivas-Motta
    pleaded guilty, the BIA held for the first time that reckless
    endangerment under § 13-1201 is a crime involving moral
    turpitude. Matter of Leal, 
    26 I. & N. Dec. 20
    , 27 (BIA
    2012), aff’d sub nom. Leal v. Holder, 
    771 F.3d 1140
     (9th Cir.
    2014).
    The holding in Matter of Leal represents a “new rule”
    under any definition of that term. The Supreme Court has
    said that a decision can establish a new rule “either by
    overruling clear past precedent on which litigants may have
    relied, or by deciding an issue of first impression whose
    resolution was not clearly foreshadowed.” Chevron Oil Co.
    v. Huson, 
    404 U.S. 97
    , 106 (1971) (citations omitted). The
    BIA did not overrule past precedent in Matter of Leal, but it
    did resolve an issue of first impression—whether reckless
    endangerment qualifies as a crime involving moral turpitude.
    The BIA’s resolution of that issue was not clearly
    foreshadowed by precedent existing at the time Olivas-
    Motta pleaded guilty. In fact, as discussed below, the BIA’s
    precedent in 2007 suggested that reckless endangerment
    under § 13-1201 would not be classified as a crime involving
    moral turpitude. Thus, Matter of Leal plainly constitutes the
    “change in law” that the majority identifies as necessary to
    trigger retroactivity analysis. Maj. op. at 9.
    The majority suggests that our case is analogous to one
    in which a statutory provision is on the books when a
    22             OLIVAS-MOTTA V. WHITAKER
    defendant pleads guilty, and a court later does nothing more
    than construe and apply that statute in the case at hand. Maj.
    op. at 12. In that scenario, the majority asserts, we would
    not regard the judicial interpretation as a “new rule” subject
    to retroactivity analysis.
    The majority’s assertion would be correct if the court’s
    decision were “dictate[d] by the plain language of the
    statute.” Harper v. Virginia Department of Taxation,
    
    509 U.S. 86
    , 111 (1993) (Kennedy, J., concurring in part and
    concurring in the judgment) (internal quotation marks
    omitted). But that is certainly not the case here. The
    governing statutory standard is supplied by 
    8 U.S.C. § 1227
    (a)(2)(A)(ii), which renders a non-citizen removable
    if he’s been convicted of two or more “crimes involving
    moral turpitude.” The quoted phrase has no intelligible
    meaning; it creates what Justice Jackson rightly labeled “an
    undefined and undefinable standard.” Jordan v. De George,
    
    341 U.S. 223
    , 235 (1951) (Jackson, J., dissenting). Neither
    our court nor the BIA has been able to come up with “any
    coherent criteria for determining which crimes fall within
    that classification and which crimes do not.” Nunez v.
    Holder, 
    594 F.3d 1124
    , 1130 (9th Cir. 2010). The BIA has
    been able to give the statutory standard concrete meaning
    mainly by declaring, through case-by-case adjudications,
    which specific offenses are covered and which are not. See
    Marmolejo-Campos v. Holder, 
    558 F.3d 903
    , 910–11 (9th
    Cir. 2009) (en banc).
    Against that backdrop, each BIA decision that designates
    a new offense (or class of offenses) as a crime involving
    moral turpitude potentially creates a “new rule” for
    retroactivity purposes—at least where, as here, the decision
    was not clearly foreshadowed by prior precedent. That does
    not mean retroactive application of all such decisions is
    OLIVAS-MOTTA V. WHITAKER                    23
    prohibited; it just means that the decisions must be analyzed
    under the framework we’ve established for assessing
    whether retroactive application is permissible.
    This case is a prime example of one in which retroactive
    application of a new rule is impermissible. Olivas-Motta
    was originally charged in 2007 with attempted murder and
    aggravated assault with a deadly weapon, offenses that
    would clearly render him removable if he were convicted.
    He had already been convicted of one crime involving moral
    turpitude; he would be subject to removal if convicted of a
    second, and the BIA had already classified attempted murder
    and aggravated assault with a deadly weapon as crimes
    involving moral turpitude. See Matter of Sanchez-Linn, 
    20 I. & N. Dec. 362
    , 366 (BIA 1991); Matter of Medina, 
    15 I. & N. Dec. 611
    , 614 (BIA 1976).
    Minimizing the likelihood of removal was of paramount
    concern to Olivas-Motta. He was born in Mexico, but his
    parents brought him to the United States in 1976 when he
    was only ten days old. He has lived his entire life in this
    country as a lawful permanent resident. He is married to a
    U.S. citizen, and both of his children are U.S. citizens. Most
    of his family members are also either U.S. citizens or lawful
    permanent residents. For him, being removed to Mexico
    would truly be “the equivalent of banishment or exile.”
    Padilla, 
    559 U.S. at 373
     (quoting Delgadillo v. Carmichael,
    
    332 U.S. 388
    , 390–91 (1947)).
    Although Olivas-Motta believed himself innocent of the
    charges he faced, he was no doubt “acutely aware” of the
    severe immigration consequences a conviction would
    trigger. INS v. St. Cyr, 
    533 U.S. 289
    , 322 (2001). He
    therefore had his attorney explore the possibility of pleading
    guilty to a lesser offense. Olivas-Motta’s defense counsel
    consulted with an experienced immigration lawyer, who
    24             OLIVAS-MOTTA V. WHITAKER
    surveyed the law as it then stood. She advised that having
    Olivas-Motta plead guilty to reckless endangerment under
    § 13-1201 would minimize the risk of deportation because
    that offense in all likelihood would not be regarded as a
    crime involving moral turpitude. Olivas-Motta relied on that
    advice in deciding to plead guilty and forgo his right to a
    trial.
    The advice Olivas-Motta received was sound at the time.
    The BIA had long held that crimes involving moral turpitude
    require some form of corrupt or evil intent. See, e.g., Matter
    of P—, 
    3 I. & N. Dec. 56
    , 59 (BIA 1947). The BIA retreated
    from that position in 1976, when it held that certain offenses
    committed with a mens rea of recklessness could qualify as
    well. Medina, 15 I. & N. Dec. at 614. But the Board also
    made clear that a crime involving reckless conduct is not per
    se a crime involving moral turpitude. In re Fualaau, 
    21 I. & N. Dec. 475
    , 478 (BIA 1996). Something more was
    required, although exactly what that something more
    consisted of remained open to debate. In predicting the
    likely classification of reckless endangerment, the best
    guidance came from a series of cases involving
    manslaughter and assault offenses, which held that a crime
    committed with a mens rea of recklessness had to include as
    an element some sort of aggravating circumstance, such as
    the infliction of death or serious bodily injury. See 
    id.
    (serious bodily injury); Matter of Wojtkow, 
    18 I. & N. Dec. 111
    , 113 (BIA 1981) (death); Medina, 15 I. & N. Dec. at 614
    (use of a deadly weapon).
    As of 2007, the BIA had not issued a precedential
    decision involving a reckless endangerment offense.
    Nonetheless, reckless endangerment under Arizona law did
    not appear to qualify as a crime involving moral turpitude,
    for although it requires a mens rea of recklessness, it does
    OLIVAS-MOTTA V. WHITAKER                           25
    not require proof of any of the aggravating circumstances
    found in past cases. The felony version of the offense, to
    which Olivas-Motta pleaded guilty, simply requires
    “recklessly endangering another person with a substantial
    risk of imminent death.” 
    Ariz. Rev. Stat. § 13-1201
    (A). To
    be sure, there was ongoing debate about whether placing
    someone in grave risk of death or serious bodily injury could
    itself be deemed an aggravating circumstance, see Knapik v.
    Ashcroft, 
    384 F.3d 84
    , 90 (3d Cir. 2004); In re Braimllari,
    
    2006 WL 729794
    , at *1 (BIA Feb. 14, 2006), but the BIA
    had rejected that view in two non-precedential decisions,
    both of which expressly held that reckless endangerment
    under § 13-1201 did not qualify as a crime involving moral
    turpitude. In re Almeraz-Hernandez, 
    2006 WL 3203649
    , at
    *2–3 (BIA Sept. 6, 2006); In re Valles-Moreno, 
    2006 WL 3922279
    , at *2–3 (BIA Dec. 27, 2006).
    In 2008, however, the Attorney General replaced the
    BIA’s former standard for determining which recklessness
    offenses qualify as crimes involving moral turpitude with a
    new standard. In Matter of Silva-Trevino, 
    24 I. & N. Dec. 687
     (A.G. 2008), the Attorney General declared that, to
    qualify as a crime involving moral turpitude, an offense need
    involve only “reprehensible conduct and some degree of
    scienter.” 
    Id.
     at 689 n.1. The effect of this change was to
    eliminate the aggravating-circumstance requirement for
    offenses with a mens rea of recklessness. 1 Under the new
    1
    The government argues, and the majority appears to agree, that the
    aggravating-circumstance requirement was limited to assault offenses,
    and thus did not apply to offenses like reckless endangerment. Maj. op.
    at 13–14. But none of the BIA’s cases in this area held that the
    aggravating-circumstance requirement was limited to assault offenses
    alone, and there is no logical reason why it would not extend to a
    comparably serious offense such as reckless endangerment. Indeed, in
    each of the pre-Silva-Trevino cases in which the BIA held that a reckless
    26               OLIVAS-MOTTA V. WHITAKER
    standard, it was now far more likely that reckless
    endangerment under § 13-1201 would be classified as a
    crime involving moral turpitude. After all, placing someone
    in “substantial risk of imminent death” would certainly seem
    to qualify as reprehensible conduct. And indeed, in 2012,
    that is exactly what the BIA concluded in Matter of Leal,
    where the agency held for the first time that reckless
    endangerment under § 13-1201 constitutes a crime involving
    moral turpitude. 26 I. & N. Dec. at 27.
    The question thus becomes whether Matter of Leal may
    be applied retroactively to Olivas-Motta’s case—in other
    words, whether the immigration consequences of his
    conviction should be assessed under the law as it stood in
    2007, when he pleaded guilty, or under the law as it stood in
    2014, when the BIA adjudicated his appeal. To answer that
    question, we apply the test from Montgomery Ward & Co. v.
    FTC, 
    691 F.2d 1322
     (9th Cir. 1982), which requires us to
    balance five factors: “(1) whether the particular case is one
    of first impression, (2) whether the new rule represents an
    abrupt departure from well established practice or merely
    attempts to fill a void in an unsettled area of law, (3) the
    extent to which the party against whom the new rule is
    applied relied on the former rule, (4) the degree of the burden
    which a retroactive order imposes on a party, and (5) the
    statutory interest in applying a new rule despite the reliance
    of a party on the old standard.” 
    Id. at 1333
     (internal
    quotation marks omitted).
    endangerment offense qualified as a crime involving moral turpitude, no
    one disputed that the aggravating-circumstance requirement applied.
    The BIA simply concluded in those cases, involving statutes from other
    States, that the requirement was satisfied. See Knapik, 
    384 F.3d at 90
    ;
    Braimllari, 
    2006 WL 729794
    , at *1.
    OLIVAS-MOTTA V. WHITAKER                    27
    The weight to be accorded the first, fourth, and fifth
    factors has already been settled. We have held that the first
    factor does not favor either party in the immigration context.
    Garfias-Rodriguez v. Holder, 
    702 F.3d 504
    , 520–21 (9th Cir.
    2012) (en banc). The fourth factor strongly favors Olivas-
    Motta, as the burden imposed by retroactively applying the
    law in effect in 2014 is severe: Under the rule adopted in
    Matter of Leal, his conviction for reckless endangerment
    would be regarded as a crime involving moral turpitude,
    subjecting him to removal from the United States and
    separation from his family. See id. at 523. The fifth factor
    points in the government’s favor, since “non-retroactivity
    impairs the uniformity of a statutory scheme, and the
    importance of uniformity in immigration law is well
    established.” Id.
    The second and third factors, then, are dispositive, and
    they tip the balance in Olivas-Motta’s favor. When he
    pleaded guilty to reckless endangerment in 2007, the BIA
    had an established standard for determining which
    recklessness offenses constitute crimes involving moral
    turpitude. The Attorney General’s subsequent decision in
    Silva-Trevino represented an “abrupt departure” from that
    standard, Montgomery Ward, 
    691 F.2d at 1333
     (internal
    quotation marks omitted), in the sense that it replaced the
    aggravating-circumstance requirement with a new, more
    expansive standard. That change in the governing standard
    was outcome determinative with respect to certain offenses,
    as we know from the way the BIA classified § 13-1201
    before and after Silva-Trevino. Before the Attorney
    General’s decision, the BIA had held (in non-precedential
    decisions) that reckless endangerment under § 13-1201 does
    not constitute a crime involving moral turpitude; afterward
    the BIA definitively held exactly the opposite. Because
    Olivas-Motta had no reason to anticipate elimination of the
    28             OLIVAS-MOTTA V. WHITAKER
    aggravating-circumstance requirement, his reliance on the
    pre-Silva-Trevino standard when deciding to plead guilty
    was eminently reasonable. Cf. Garfias-Rodriguez, 702 F.3d
    at 521 (second and third factors weigh in favor of retroactive
    application when the petitioner “could reasonably have
    anticipated the change in the law such that the new
    ‘requirement would not be a complete surprise’”) (quoting
    Montgomery Ward, 
    691 F.2d at
    1333–34).
    It’s true, as the government argues, that the status of
    § 13-1201 had not been settled definitively in Olivas-
    Motta’s favor prior to 2008. So this is not a case in which it
    is 100% clear that Olivas-Motta would have prevailed under
    the pre-Silva-Trevino standard. But, contrary to the
    majority’s apparent assumption, see Maj. op. at 14, that is
    far from fatal under the second and third Montgomery Ward
    factors.
    In Miguel-Miguel v. Gonzales, 
    500 F.3d 941
     (9th Cir.
    2007), we ruled for the petitioner in circumstances quite
    similar to those present here. When the petitioner in that
    case pleaded guilty to selling a small amount of cocaine, a
    relatively minor drug-trafficking offense like his would be
    classified as a “particularly serious crime” on a case-by-case
    basis using a multi-factor test. 
    Id.
     at 945–46, 950. After he
    pleaded guilty, the Attorney General created a new standard
    that presumed all drug-trafficking offenses to be particularly
    serious crimes, with the presumption rebuttable only in very
    narrow circumstances. 
    Id.
     at 946–47. We held that the
    second and third factors favored the petitioner because at the
    time he pleaded guilty, there was a “realistic chance” that the
    BIA would find that his crime was not particularly serious,
    whereas under the Attorney General’s new standard there
    was “a near (if not total) certainty” that his crime would be
    OLIVAS-MOTTA V. WHITAKER                    29
    classified as particularly serious, thereby resulting in his
    removal. 
    Id. at 952
    ; see also St. Cyr, 
    533 U.S. at 321
    .
    Olivas-Motta’s situation is no different. At the time he
    pleaded guilty, there was at least a realistic chance that his
    reckless endangerment offense would not be classified as a
    crime involving moral turpitude; the BIA had already so held
    in two non-precedential decisions. After the Attorney
    General’s decision in Silva-Trevino, however, it was nearly
    certain that his offense would be classified as a crime
    involving moral turpitude, and the BIA’s decision in Matter
    of Leal soon eliminated what little uncertainty remained on
    that score. To the same extent as in Miguel-Miguel, the
    change in the governing standard “attaches new legal
    consequences to events completed before its enactment,”
    Vartelas v. Holder, 
    566 U.S. 257
    , 273 (2012) (internal
    quotation marks omitted), and therefore may not be applied
    retroactively.
    Under the Montgomery Ward test, the balance of factors
    weighs in favor of Olivas-Motta. Three of the factors favor
    him—one strongly so—while only one of the factors points
    in the government’s favor. That means the status of his
    conviction for reckless endangerment should be analyzed
    under the law as it stood in 2007, applying the standard that
    prevailed before the Attorney General’s decision in Silva-
    Trevino. See 
    id. at 261
    . I would grant Olivas-Motta’s
    petition for review and remand so that the agency can
    conduct that analysis in the first instance.
    

Document Info

Docket Number: 14-70543

Citation Numbers: 910 F.3d 1271

Filed Date: 12/19/2018

Precedential Status: Precedential

Modified Date: 12/19/2018

Authorities (33)

Jan Knapik v. John Ashcroft, Attorney General of the United ... , 384 F.3d 84 ( 2004 )

Peter Odima v. Westin Tucson Hotel, a Delaware Corporation, ... , 53 F.3d 1484 ( 1995 )

United States v. Ronald Thrasher , 483 F.3d 977 ( 2007 )

Zeferino Mendez-Gutierrez v. Alberto R. Gonzales, Attorney ... , 444 F.3d 1168 ( 2006 )

Miguel-Miguel v. Gonzales , 500 F.3d 941 ( 2007 )

Montgomery Ward & Co., Incorporated v. Federal Trade ... , 691 F.2d 1322 ( 1982 )

Daniel Valencia-Alvarez v. Alberto R. Gonzales, Attorney ... , 469 F.3d 1319 ( 2006 )

Marmolejo-Campos v. Holder , 558 F.3d 903 ( 2009 )

Oyeniran v. Eric H. Holder Jr. , 672 F.3d 800 ( 2012 )

Baltazar Hernandez Barron Margarita Hernandez Ramirez v. ... , 358 F.3d 674 ( 2004 )

christine-l-miller-guardian-ad-litem-tonnie-savage-guardian-ad-litem-v , 335 F.3d 889 ( 2003 )

Francisco Alcaraz Leticia Cardenas Alcaraz v. Immigration ... , 384 F.3d 1150 ( 2004 )

Morales-Izquierdo v. Department of Homeland Security , 600 F.3d 1076 ( 2010 )

Ali v. Holder , 637 F.3d 1025 ( 2011 )

retail-wholesale-and-department-store-union-afl-cio-v-national-labor , 466 F.2d 380 ( 1972 )

In Re Sanford Fork & Tool Co. , 16 S. Ct. 291 ( 1895 )

Manhattan General Equipment Co. v. Commissioner of Internal ... , 56 S. Ct. 397 ( 1936 )

Immigration & Naturalization Service v. St. Cyr , 121 S. Ct. 2271 ( 2001 )

Sessions v. Dimaya , 138 S. Ct. 1204 ( 2018 )

Montana v. United States , 99 S. Ct. 970 ( 1979 )

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