Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 19-1468

LAZARO ANTONIO MEJIA,

Petitioner,

v.

MERRICK B. GARLAND,* Attorney General,

Respondent.

No. 20-2204

LAZARO ANTONIO MEJIA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITIONS FOR REVIEW OF ORDERS OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Lipez, and Howard, Circuit Judges.

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr. Stephen A. Lagana, with whom Law Offices of Stephen A. Lagana was on brief, for petitioner. M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, Brian Boynton, Acting Assistant Attorney General, Civil Division, and Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

June 11, 2024

- 2 - PER CURIAM. These petitions are not the first that we

have addressed in this case. We previously remanded this case to

the Board of Immigration Appeals (BIA) and directed the BIA to

reexamine its reliance on In re Jurado-Delgado,

(BIA 2006), and properly apply the modified categorical approach

in determining whether Lazaro Antonio Mejia had committed crimes

involving moral turpitude (CIMTs). See Mejia v. Holder,

(1st Cir. 2014).1 Now before us again in Petition for

Review 19-1468, we are unable to conclude that the BIA did as

instructed.

On remand, the BIA applied the interpretation of CIMT

developed in In re Diaz-Lizarraga,

(BIA 2016),2

which had "update[d]" the BIA's definition of theft-related CIMTs.

. Where theft-related CIMTs once required an intent to

permanently deprive, Diaz-Lizarraga expanded the definition of

CIMT to include any theft crime "where the owner's property rights

are substantially eroded."

.

1 The underlying facts are described in our previous opinion, and we do not repeat them here. 2 Although on remand the BIA had conducted an initial analysis applying pre-Diaz-Lizarraga precedent, the Board's reasoning was never reviewed by this court because the government moved, unopposed, to remand a second time for the BIA to "engage in the full categorical analysis" and "address the effect of its decision in Matter of Diaz-Lizarraga." In Petition for Review 19-1468, Mejia now seeks review of that second analysis.

- 3 - But the BIA decided Diaz-Lizarraga in 2016, and applying

Diaz-Lizarraga to Mejia's 2012 and 1999 guilty pleas would appear

to retroactively impose a major and unforeseeable policy change on

an unsuspecting petitioner. See

(stating Diaz-

Lizarraga "update[d]" policy that had existed "[f]rom the Board's

earliest days"); see also Garcia-Martinez v. Sessions,

(9th Cir. 2018) (deeming Diaz-Lizarraga "a rather abrupt

change in the law, to say the least"); Monteon-Camargo v. Barr,

(5th Cir. 2019) (same); Obeya v. Sessions,

(2d Cir. 2018) (same). As the government

acknowledges, this retroactive application of Diaz-Lizarraga

imposes a severe burden on Mejia, who faces removal from the

country that has been his home for thirty-six years. See Padilla

v. Kentucky,

(2010) (characterizing deportation

as a particularly severe penalty); Obeya,

; Garcia-

Martinez,

; Francisco-Lopez v. Att'y Gen. U.S.,

(3d Cir. 2020).

We have been clear that retroactive application of

agency policy developed through adjudication can violate due

process if it adversely upsets reasonable reliance interests. See

United States v. Hoyts Cinemas Corp.,

, 573 & n.11

(1st Cir. 2004) (quoting Cheshire Hosp. v. N.H.-Vt.

Hospitalization Serv., Inc.,

, 1121 & n.10 (1st Cir.

1982)); cf. Molina v. INS,

(1st Cir. 1992)

- 4 - (allowing retroactive adjudication unless clear legal authority

warrants reliance on old policy). Other circuits and the BIA have

endorsed detailed frameworks to balance the merits and demerits of

adjudicative retroactivity pursuant to SEC v. Chenery Corp.,

(1947). See Retail, Wholesale & Dep't Store Union,

AFL-CIO v. NLRB,

(D.C. Cir. 1972);3 Microcomputer

Tech. Inst. v. Riley,

, 1050 (5th Cir. 1998);

Gutierrez-Brizuela v. Lynch,

, 1145-46 & 1146 n.1

(10th Cir. 2016). Yet here, the BIA did not mention retroactivity,

much less weigh its advantages and disadvantages. We think it

best that the BIA consider these and other issues in the first

instance, accepting new briefing from the parties as needed.

In Petition for Review 20-2204, Mejia also challenges

the BIA's separate denial of his motion to reopen, but the BIA's

reasoning here suffers from no deficiencies. The BIA has

considerable discretion to determine whether "truly exceptional"

circumstances warrant sua sponte reopening, Thompson v. Barr, 959

3 The Second, Third, Fourth, Sixth, Seventh, and Ninth Circuits follow the D.C. Circuit's Retail Union test. See, e.g., Lehman v. Burnley,

(2d Cir. 1989); Dole v. E. Penn Mfg. Co.,

, 647 (3d Cir. 1990); NLRB v. Ensign Elec. Div. of Harvey Hubble, Inc.,

, 1103 n.2 (4th Cir. 1985); J.L. Foti Constr. Co. v. OSHA Review Comm'n,

(6th Cir. 1982); NLRB v. Wayne Transp.,

, 751 (7th Cir. 1985); Oil, Chem. & Atomic Workers Int'l Union Local 1–547 v. NLRB,

(9th Cir. 1988). The BIA followed suit in 2019. See In re Cordero-Garcia,

(BIA 2019).

- 5 - F.3d 476, 480 (1st Cir. 2020) (quoting In re G-D-,

(BIA 1999)), and it reasonably concluded that Mejia

failed to prove that his 1999 shoplifting conviction was vacated

due to procedural or substantive invalidity, see Rumierz v.

Gonzales,

(1st Cir. 2006). The BIA utilized the

correct legal standard and did not exercise its judgment

arbitrarily, capriciously, or irrationally. See Thompson, 959

F.3d at 480. Petitioner's claim thus does not warrant relief.

***

For the foregoing reasons, in 19-1468 we VACATE and

REMAND to the BIA for further proceedings, and in 20-2204 we DENY

the petition.

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