                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 06 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GUILLERMO PEREZ-AGUILAR,                         No. 13-70534

              Petitioner,                        Agency No. A095-782-642

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted October 7, 2014
                               Phoenix, Arizona

Before: D.W. NELSON, SILVERMAN, and M. SMITH, Circuit Judges.

       Guillermo Perez-Aguilar (“Perez-Aguilar”) petitions for review of the Board

of Immigration Appeals’ (“BIA”) dismissal of his appeal of a final order of

removal. The BIA held that Perez-Aguilar had been convicted of a crime

involving moral turpitude (“CIMT”) and was thus ineligible for cancellation of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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removal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the

petition.

       Perez-Aguilar is a native and citizen of Mexico, born in 1978, who entered

the U.S. in 1996 without inspection. On April 26, 2009, the Department of

Homeland Security (“DHS”) served Perez-Aguilar with a Notice to Appear,

charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) as a person

present in the United States without being admitted or paroled, although these

initial proceedings were not concluded. In July 2011, Perez-Aguilar pled guilty to

felony endangerment in Arizona under Arizona Revised Statute § 13-1201 and

misdemeanor driving under the influence of intoxicating liquor or drugs under

Arizona Revised Statute § 28-1381(A)(1). DHS thereafter re-initiated the removal

proceedings on July 30, 2012, due to Perez-Aguilar’s conviction. Perez-Aguilar

conceded removability, but filed an Application for Cancellation of Removal and

Adjustment of Status of Certain Nonpermanent Residents (“Application”). On

October 4, 2012, DHS moved the immigration judge (“IJ”) to pretermit Perez-

Aguilar’s Application, and the IJ granted the request. Perez-Aguilar timely

appealed the IJ’s decision to the BIA, which dismissed his appeal in an

unpublished opinion on February 7, 2013, relying explicitly on the BIA’s recent




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decision in Matter of Leal, 26 I. & N. Dec. 20 (BIA 2012), which held felony

endangerment was categorically a CIMT.

      Where the BIA’s decision is unpublished, but directly controlled by a

published opinion, as here, we must defer to the BIA’s conclusion so long as it is a

“permissible construction of the INA.” Marmolejo-Campos v. Holder, 558 F.3d

903, 913 (9th Cir. 2009) (en banc). In an opinion filed contemporaneous with this

memorandum, we upheld the BIA’s decision in Matter of Leal as a reasonable

interpretation of the INA under the Chevron framework, Leal v. Holder, ___ F.3d

____ (9th Cir. [Date], 2014). Our opinion in that case is controlling here.1

      As we have previously explained, CIMTs may be premised on reckless

conduct where there is “serious resulting harm.” Ceron v. Holder, 747 F.3d 773,

      1
         We reject Perez-Aguilar’s argument that applying Leal to this matter is an
impermissible retroactive enforcement of a new agency rule. A question of
retroactivity arises only where there is an explicit change in the law. See James B.
Beam Distilling Co. v. Georgia, 501 U.S. 529, 534 (1991) (“It is only when the law
changes in some respect that an assertion of nonretroactivity may be entertained,
the paradigm case arising when a court expressly overrules a precedent upon which
the contest would otherwise be decided differently and by which the parties may
previously have regulated their conduct.”). Prior to Leal, the BIA had never
determined in a published opinion whether felony endangerment in Arizona is
categorically a CIMT and had instead issued conflicting decisions in non-
precedential, unpublished decisions. Compare Matter of Valles-Moreno, 2006 WL
3922279 (BIA 2006), with Matter of Lopez-Orosco, 2010 WL 5635156 (BIA
2010). Thus, the BIA’s decision in Leal does not constitute a change in the law
that triggers the retroactivity analysis.


                                          3
783 (9th Cir. 2014) (en banc) (quoting In re Solon, 24 I. & N. Dec. 239, 242 (BIA

2007)). Recklessly placing another person in actual substantial risk of imminent

death, as is required for felony endangerment, State v. Carreon, 107 P.3d 900, 909

(Ariz. 2005) (en banc), is “base, vile, and depraved conduct” that qualifies this

crime as a CIMT, Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010) (internal

quotation marks omitted). Because a required element of felony endangerment is

substantial, actual risk of imminent death to another person, there is no “realistic

possibility” that the statute will be applied to non-turpitudinous conduct. See

Turijan v. Holder, 744 F.3d 617, 620 (9th Cir. 2014). Thus, the BIA’s decision

was based on a permissible construction of the statute.

      PETITION FOR REVIEW DENIED.




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