CA9 (2-1) on Retroactivity: Reyes Afanador v. Garland

Reyes Afanador v. Garland

"Taking these [retroactivity analysis] factors together, the second, third, and fourth factors all weigh against applying Cortes Medina to Reyes’s 2011 conviction, and the fifth factor, which weighs in favor of retroactivity, is not dispositive. Because imposing new legal consequences on Reyes’s decision to plead guilty to a section 314.1 offense would conflict with principles of “fair notice, reasonable reliance and settled expectations,” St. Cyr, 533 U.S. at 323 (quoting Landgraf, 511 U.S. at 270), and the government has not shown any significant countervailing concerns beyond the general interest in uniformity in the statutory scheme, we conclude that it would be impermissible to apply Cortes Medina to Reyes’s 2011 conviction. ... We conclude that the BIA improperly applied Cortes Medina to Reyes’s 2011 conviction under section 314.1, and therefore that conviction may not be deemed a crime involving moral turpitude. Because Reyes has only one conviction for a crime involving moral turpitude, and the government sought to remove him for having two convictions for crimes involving moral turpitude, § 1227(a)(2)(A)(ii), we grant the petition for review on this ground. On remand, the agency may consider additional evidence from the parties including evidence rebutting the presumption that Reyes relied on Nunez when he pleaded guilty under section 314.1 in 2011. PETITION GRANTED."

[Hats off to Saad Ahmad and Raul Ray, who filed this petition for review way back in January of 2017!]