    Case: 17-60345   Document: 00514932801    Page: 1     Date Filed: 04/26/2019




                       REVISED April 26, 2019

         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit


                               No. 17-60345                           FILED
                                                                 March 14, 2019
                                                                 Lyle W. Cayce
                                                                      Clerk

GUSTAVO MONTEON-CAMARGO,
Also Known as Ulysius Montillon-Camargo,
Also Known as Gustavo Monteon-Camargo Camargo,

                                         Petitioner,

versus

WILLIAM P. BARR, U.S. Attorney General,

                                         Respondent.




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




Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Gustavo Monteon-Camargo, a native and citizen of Mexico, petitions for
review of a final order of removal by the Board of Immigration Appeals (“BIA”
or “Board”). The BIA determined that Monteon-Camargo was ineligible for
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                                        No. 17-60345
cancellation of removal because his 2007 conviction of attempted theft from a
person under Texas law counts as a crime involving moral turpitude (“CIMT”)
under a 2016 BIA decision. We grant the petition and reverse and remand
because that retroactive application was error.

                                               I.
      Monteon-Camargo first entered the United States in 1998 on a non-
immigrant visa but was arrested and administratively returned to Mexico in
2004. He reentered on an unknown date and was arrested by the Department
of Homeland Security (“DHS”) in 2010. DHS served him with a Notice to
Appear, charging him with inadmissibility as an alien present in the United
States without being admitted or paroled, in violation of 8 U.S.C.
§ 1182(a)(6)(A)(i).

      During removal proceedings, Monteon-Camargo submitted an “Applica-
tion for Cancellation of Removal and Adjustment of Status for Certain Non-
permanent Residents.” DHS submitted a judgment showing that in 2007,
Monteon-Camargo had pleaded guilty of attempted theft from a person in vio-
lation of Texas Penal Code § 31.03.1 Deciding that that offense was a CIMT
and that Monteon-Camargo thus had failed to establish one of the
prerequisites for eligibility for cancellation of removal—that his conviction was


      1   Texas Penal Code § 31.03(a)–(b) provides as follows:
      (a) A person commits an offense if he unlawfully appropriates property with intent to
      deprive the owner of property.
      (b) Appropriation of property is unlawful if:
               (1) it is without the owner’s effective consent;
               (2) the property is stolen and the actor appropriates the property knowing it
               was stolen by another; or
               (3) property in the custody of any law enforcement agency was explicitly repre-
               sented by any law enforcement agent to the actor as being stolen and the actor
               appropriates the property believing it was stolen by another.
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                                     No. 17-60345
not a CIMT—the immigration judge (“IJ”) found Monteon-Camargo removable
as charged.2

      Monteon-Camargo appealed to the BIA, contending that the IJ erred in
failing to apply the modified categorical approach to determine whether the
attempted-theft conviction was a CIMT. He asked the BIA to remand to allow
him to supplement the record with his conviction records so he could show that
his conviction was not a CIMT.3

      The BIA dismissed the appeal. It agreed with the IJ that attempted theft
from a person under § 31.03 is categorically a CIMT and that Monteon-
Camargo was therefore statutorily ineligible for cancellation of removal. The
Board based its decision on In re Diaz-Lizarraga, 26 I. & N. Dec. 847, 848 (BIA
2016), which announced that a theft offense is a CIMT if it involves a taking
or exercise of control over another’s property without consent and with an
intent to deprive the owner of his property either permanently or under cir-
cumstances in which the owner’s property rights are substantially eroded. A
defendant could not be convicted of violating § 31.03, the BIA continued, unless
his conduct met the definition in Diaz-Lizarraga. The BIA also noted that
Texas caselaw confirms “that a theft conviction may not lawfully be entered
absent proof beyond a reasonable doubt that the accused intended


      2  The IJ also denied Monteon-Camargo’s request for a continuance to apply for other
forms of relief, explaining that a continuance would be futile because Monteon-Camargo was
statutorily ineligible for adjustment of status and could not cure his ineligibility with a
waiver. The IJ further declined to continue proceedings to allow Monteon-Camargo to apply
for withholding of removal because Monteon-Camargo had not shown the requisite good
cause. The IJ noted that proceedings had been ongoing for approximately two years, yet
Monteon-Camargo had not sought a withholding of removal until other forms of relief were
foreclosed.
      3  Monteon-Camargo also challenged the IJ’s denial of a continuance, explaining that
he had not “proceeded on his application for withholding of removal” because he believed he
had a strong case for cancellation of removal. He further averred that he needed a continu-
ance to file for asylum under the United Nations Convention Against Torture.
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                                         No. 17-60345
permanently to deprive the victim of the value of his property.” Consequently,
the Board concluded, Monteon-Camargo’s conviction is a CIMT.4

       While his petition for review to this court was pending, Monteon-
Camargo moved the Board to reopen and reconsider its decision dismissing his
original appeal of the IJ’s decision. The BIA denied that motion, whereupon
Monteon-Camargo filed a second petition for review in this court. We consoli-
dated the two petitions, and the parties filed supplemental briefing.

       After that, several of our sister circuits held that the Board may not
retroactively apply Diaz-Lizarraga’s definition of CIMTs to predicate offenses
committed before that decision.5 Monteon-Camargo and the government have
submitted several supplemental letters addressing those cases.

                                               II.
       We review the BIA’s rulings of law de novo, “giv[ing] Chevron defer-
ence[6] to the BIA’s interpretation of the term ‘moral turpitude’ and its guid-
ance on the general categories of offenses which constitute CIMTs.” Laryea v.
Sessions, 871 F.3d 337, 341 (5th Cir. 2017) (internal alterations and citation
omitted). Because the BIA agreed with the IJ’s rulings, we review the decisions
of both the BIA and the IJ. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir.
2007).

       An alien is eligible for cancellation of removal if, among other things, he



       4  Regarding the request for a continuance, the BIA observed that Monteon-Camargo
had received multiple continuances over the past two years, had “designated Mexico as the
country of removal” and expressed no fear of returning there, “ha[d] not proffered an applica-
tion [for asylum] on appeal,” and had “established [neither] prima facie eligibility for [asylum
nor prejudice].”
       5Garcia-Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018); Obeya v. Sessions,
884 F.3d 442 (2d Cir. 2018); Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017).
       6   See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–43 (1984).
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                                        No. 17-60345
“has not been convicted of an offense under section 1182(a)(2)”7—that is, “a
[CIMT].” 8 U.S.C. § 1182(a)(2)(A)(i)(I). The alien has the burden to establish
eligibility for cancellation of removal. Id. § 1229a(c)(4)(A). Put differently, the
alien must prove that his conviction was not a CIMT.

       Congress did not define “moral turpitude” in the Immigration and
Nationality Act but “left the interpretation of this provision to the BIA and
interpretation of its application to state and federal laws to the federal courts.”
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 319−20 (5th Cir. 2005). The BIA
has long maintained that “theft [is] . . . a [CIMT],” Okoro v. INS, 125 F.3d 920,
926 (5th Cir. 1997), and this court has consistently deferred to that holding.
See id.

       Historically, the BIA has held that a theft offense is categorically a CIMT
only if it was “committed with the intent to permanently deprive an owner of
property.”8 But the BIA altered its position in 2016. In Diaz-Lizarraga, a for-
mal adjudication, the BIA opined that “lawmakers and judges across the coun-
try have come to recognize that many temporary takings are as culpable as
permanent ones.” Diaz-Lizarraga, 26 I. & N. Dec. at 851. The Board thus
revised its interpretation of which theft crimes constitute CIMTs, holding “that
a taking or exercise of control over another’s property without consent . . . is a
[CIMT] 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 852–53 (some emphasis added).

       The BIA applied that new standard to classify Monteon-Camargo’s
conviction as a CIMT. Monteon-Camargo contends that the BIA’s retroactive


       7   8 U.S.C. § 1229b(b)(1)(C).
       8Diaz-Lizarraga, 26 I. & N. Dec. at 849; see also, e.g., In re Grazley, 14 I. & N. Dec.
330, 333 (BIA 1973).
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                                       No. 17-60345
application of Diaz-Lizarraga violates due process. But before we reach the
merits of that argument, we must decide two threshold questions: whether he
waived the issue and whether we have jurisdiction.

                                              A.
       “Generally speaking, a [party] waives an issue if he fails to adequately
brief it.” United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001). That
“rule is a prudential construct that requires the exercise of discretion.” Id.
(internal quotation marks and citation omitted). Federal Rule of Appellate
Procedure 28(a)(8)(A) instructs a party to brief his “contentions and the rea-
sons for them, with citations to the authorities and parts of the record on which
the [party] relies.” Still, this court has the discretion to consider inadequately
briefed claims and has done so. See, e.g., Martinez, 263 F.3d at 438.

       Monteon-Camargo first contended that the BIA erred in retroactively
applying Diaz-Lizarraga in his supplemental brief, devoting just over a page
to the theory and citing no authorities. But both parties have filed supple-
mental letters addressing the issue and providing authorities.

       Despite the sparse briefing, we exercise our discretion to consider
Monteon-Camargo’s retroactivity claim. Three of our sister circuits have held
that the BIA’s revised CIMT definition may not be retroactively applied to
predicate offenses committed before Diaz-Lizarraga was issued.9 We are also
satisfied that the parties have adequately presented their positions in the


       9   Garcia-Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018); Obeya v. Sessions,
884 F.3d 442 (2d Cir. 2018); Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017). In Lucio-
Rayos, the Tenth Circuit explained that “after the BIA’s decision in this case, the BIA updated
its definition of theft offenses that qualify as a CIMT.” Lucio-Rayos, 875 F.3d at 578 (internal
quotation marks and citation omitted). But “[t]hat new definition . . . does not apply retroac-
tively here . . . because a revised rule adopted by the BIA in the exercise of its delegated
legislative policymaking authority is presumed to apply prospectively only to cases initiated
after its issuance.” Id.
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                                     No. 17-60345
supplemental letters, making it appropriate to decide the issue.

                                           B.
      The government contends that we do not have jurisdiction to decide
Monteon-Camargo’s retroactivity claim, averring that judicial review is un-
available under § 1252(d)(1) because Monteon-Camargo did not present that
claim to the BIA.10 “Judicial review of a final removal order is only available
if ‘the alien has exhausted all administrative remedies available to the alien
as of right.’” Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018) (quoting
8 U.S.C. § 1252(d)(1)). That exhaustion requirement is “mandatory and juris-
dictional.” Omari v. Holder, 562 F.3d 314, 324 (5th Cir. 2009) (emphasis omit-
ted). “An alien fails to exhaust his administrative remedies with respect to an
issue when the issue is not raised in the first instance before the BIA.” Vaz-
quez, 885 F.3d at 868 (internal quotation marks, alteration, and citation omit-
ted). “[T]o satisfy the exhaustion requirement . . . a petitioner must ‘raise,’
‘present,’ or ‘mention’ an issue to the BIA” in his brief to the Board. Id. (citing
Omari, 562 F.3d at 321).

      Due process claims, however, are generally exempt from the exhaustion
doctrine because they are not within the purview of the BIA. Anwar v. INS,
116 F.3d 140, 144 n.4 (5th Cir. 1997) (citations omitted). “[W]hen a petitioner’s
due process claim does not assert a procedural error correctable by the BIA, it
is not subject to an exhaustion requirement.” Lopez De Jesus v. INS, 312 F.3d
155, 162 n.47 (5th Cir. 2002).

      Monteon-Camargo raises a due process challenge to the BIA’s decision,



      10 The government’s only response to Monteon-Camargo’s retroactivity claim has been
that this court lacks jurisdiction. The government posits that Monteon-Camargo “did not
present that argument to the agency and this Court lacks jurisdiction to review that argu-
ment in the first instance” under 8 U.S.C. § 1252(d)(1).
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                                     No. 17-60345
contending that Diaz-Lizarraga cannot apply retroactively because of “the due
process interests of fair notice.” The government counters that retroactivity
claims are not per se constitutional due process claims that the BIA is unable
to correct. And Monteon-Camargo, the government suggests, is alleging “pro-
cedural error,” Falek v. Gonzales, 475 F.3d 285, 289−90 (5th Cir. 2007) (inter-
nal quotation marks and citation omitted), because his “supplemental brief
does not mention the [C]onstitution, let alone establish that [his retroactivity
claim] is the type of argument that the Board is unable to review.” The gov-
ernment concludes that under Falek, Monteon-Camargo needed to exhaust his
retroactivity claim before the Board.

      But unlike in Falek, id., Monteon-Camargo presses a constitutional
claim, contending that retroactively applying Diaz-Lizarraga compromises his
“‘due process interests in fair notice, reasonable reliance, and settled expec-
tations’” (quoting De Niz Robles v. Lynch, 803 F.3d 1165, 1169 (10th Cir. 2015)
(Gorsuch, J.)).11 Accordingly, his retroactivity claim “is not subject to an ex-
haustion requirement,” Lopez De Jesus, 312 F.3d at 162 n.47, and we have
jurisdiction to consider it.

                                            C.
      That takes us to the merits.          “[T]he leading case on administrative
retroactivity” instructs that any disadvantages from the “‘retroactive effect[s]’”
of deciding a “‘case of first impression . . . must be balanced against the mis-
chief of producing a result which is contrary to a statutory design or to legal
and equitable principles.’” Microcomputer Tech. Inst. v. Riley, 139 F.3d 1044,


      11  Compare Lopez De Jesus, 312 F.3d at 162 (recognizing an exception to the exhaus-
tion requirement where a BIA decision applied a statutory amendment retroactively, thus
rendering an alien ineligible for a waiver of inadmissibility, and the alien challenged the
retroactive application as a violation of “his constitutional rights to fair notice and due
process”).
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                                       No. 17-60345
1050 (5th Cir. 1998) (quoting SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)).
To apply that instruction, this court “balance[s] the ills of retroactivity against
the disadvantages of prospectivity.” Id.12 “If that mischief [of prospectivity] 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.” Chenery, 332 U.S.
at 203. We must thus balance the ills of applying the BIA’s new interpretation
of which thefts constitute CIMTs against the disadvantages of applying the
change solely to predicate offenses adjudicated after Diaz-Lizarraga.

       Because the retroactivity issue was first raised in the supplemental
briefing, the various briefs say little about the disadvantages of retroactivity
versus prospectivity. There are, however, some obvious disadvantages. Crim-
inal defendants may have pleaded guilty of crimes that they rightly thought,
based on the Board’s prior position, did not constitute CIMTs. Accordingly,
they may have entered pleas believing that they would not suffer adverse im-
migration consequences as a result. Retroactively applying Diaz-Lizarraga
thus would compromise the “familiar [due process] considerations of fair
notice, reasonable reliance, and settled expectations.” Landgraf v. USI Film
Prods., 511 U.S. 244, 270 (1994).

       The change in the Board’s guidance, moreover, was significant: It added
an entirely new category of theft offenses to those considered CIMTs. In Diaz-
Lizarraga, the Board recognized that it was drastically changing the land-
scape, observing that it was “updat[ing]” what had been its position “[f]rom
[its] earliest days.” Diaz-Lizarraga, 26 I. & N. Dec. at 849, 852. Applying such



       12 Other circuits, by contrast, apply “variously articulated factors,” usually “the five
factors articulated in Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380, 390 (D.C.
Cir. 1972),” to “measure [the] unfairness to the parties against the ‘mischief’ of allowing the
previous . . . interpretation to stand.” Microcomputer Tech. Inst., 139 F.3d at 1050 (quoting
Retail, Wholesale & Dep’t Store Union, 466 F.2d at 390).
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                                     No. 17-60345
a broad “new rule[] of general applicability” to prior conduct contravenes basic
presumptions about our legislative system. De Niz Robles, 803 F.3d at 1169.
A “presumption of prospectivity attaches to Congress’s own work,” and it
should generally attach when an agency “exercise[s] delegated legislative
. . . authority.” Id. at 1171−72.

      Though there are multiple disadvantages to applying it retroactively, the
government has not identified a single disadvantage of applying Diaz-
Lizarraga only prospectively. We conclude that the definition of CIMTs an-
nounced in Diaz-Lizarraga may be applied only to crimes committed after that
decision issued. The BIA erred in applying its new definition to Monteon-
Camargo’s conviction of attempted theft.

      The petition for review is GRANTED. The order is REVERSED and
REMANDED for further proceedings.13




      13 We DENY, as moot, Monteon-Camargo’s petition for review of the BIA’s denial of
his motion to reopen and reconsider. See Arce-Vences v. Mukasey, 512 F.3d 167, 173 n.1 (5th
Cir. 2007) (denying as moot a petition for review of the BIA’s denial of a motion to reopen
where the court granted the petition for review of the original removal order).
                                            10
