think your honor may it please the court laughlin shelfer of gibson dunn for petitioner mr garcia and i will endeavor to save five minutes of my time for about all your honors as the government concedes for more than seventy years the government's rule has been that a theft offense qualifies as a crime involving moral turpitude only if the defendant intends a literally permanent deprivation the single board member or below in the opinion under review misapplied th standard as demonstrated by the b i a is published opinion a few months later india as these are aga the government does not even try to defend the opinion under review and that is enough to decide this case required a literally permanent intent to deprive and it stated that it was overruling its prior precedent and instead was dropping the permanency requirement now the government is trying to apply this new rule retroactively to mr months after mr garcia's the un published a single board member opinion that's actually under review here just a few months later in a published opinion by the interesting by the same board member who who had decided mr c is case a published opinion diaz lisa raga the board goes through the long history and says we have always applied a literally permanent intent standard but the the states most states have changed the way that they define theft the b i n g as these are actually mentions oregon as one of these states that has changed its definition of theft in response to the model penal code a says that the only way that it will be able to to reach these states like oregon under the crime involving moral turpitude standard is to change the standard to make it more capacious because those states had broadened their definition of factors the montgomery ward test last week i submitted a twenty ha letter for those second circuits case o b v sessions second circuit applies the exact same five factor test as this court the second circuit found that all five factors support mr obey or who is almost identically situated to mr garcia here and but i agree that most of this comes down to retroactivity even under the government's understanding of the five factors that got me wrong nothing  to elaborate on but that but i think this case could be decided very easily on the retroactivity point just to briefly mention the prospect of there is a an attorney general opinion called walk through the factors even under the government's reading the phase acknowledge that the fourth under the fourth factor mr garcia would that the removal would impose a substantial burden on him and even under the government's reading under the fifth factor which is the statutory standard it only at most leans in the government's favor so as we've discussed it's this is really about retroactivity the second and the third factors so we you know briefs have have looked at seventy years this court really doesn't need to look much further than the b i a's own words indeed as lisa rod which acknowledged that there was a sea change that it was taking on and so what's on the government's side of the ledger in the retroactivity portion we would argue  lucky beholder those are all aggravated felony cases and in fact manner of easy ass acknowledges that the theft definition for aggravated felony is much more lenient and  strict definition for crime involving moral turpitude so that case actually we would argue helps us the government then points to a case matter of grassley again we think this helps us because it it applies the permanency requirement and allowed then the only way i was able to to reach that case and to classify it as a faffed was to employ the modified categorical approach and look at the facts underneath so the government ends up leaning fairly heavily on a two thousand and six opinion matter of geraldo first i would urge this court again to look at the second circuit case so they have the sessions where they go through this case and find that it does not help the government at all and then in fact it helps the petitioner i think it helps mr garcia here because it did not get rid of the permanency requirement and instead first of all deference dealt with a completely separate statute called retail theft shoplifting statute essentially and nothing at all to do with the generic theft statute that surrounding the offense in order to determine that there was it was in fact permanent intent so in other words it was a matter for i did not comply with the categorical approach and it established  qualify because it mentioned oregon as one of those statutes that is trying to reach i would also urge the court to look at again and the obey had opinion at the end of that opinion and said and they said it did virtually from a it is not the same as exactly they said well let's look at the was the standard we think it was the wrong standard it could be that that this court could say is there are does not apply retroactively you have to apply your old standard you applied it incorrectly here we're reminding for you to apply correctly although frankly i don't think i don't there's and seems to me to be only one possible answer to that so that if this court would like to just take that in hand and decide the matter that would also be  good morning your honour's and may please the court in ron's eighty for the attorney general and like to clarify at the outset what's not at issue in this appeal petitioner does not dispute the validity of matter d s nor that under matter of diaz his organ theft that's the issue i'd like to focus on primarily today subject of course to this panel's questions and then i may have just a few brief points on petitioners vagueness challenge at the end now on the issue of retroactivity this court applies montgomery wards five factor tested you say that all of whose offenses are crimes involving moral turpitude and is that true and whatever standard we apply your own of the government's position on appeal is that matter diaz applies retroactively so we're arguing that under matter  what i think you're about to argue what then would be the result your honor i think that would result the case you know the government again advances only a retroactive in your argument here but we did that because we think practically speaking the two arguments whether we define decide to defend the unpublished decision or a matter of diaz and retroactivity we think the two arguments practically speaking converge on the issue of whether or not the new rule that the new rule is a change is a fundamental change tenth circuit the government ever invoked it there and the tenth circuit actually as opposed to the ninth circuit applies a pretty presumption of prospective application which this court does not so that was never briefed retroactively was never briefed on that issue the government never invoke said that only the second circuit has directly in the second circuit directly and i'm happy and very much want to address obit i think that discussion will be a little bit more clear if i can address the montgomery ward factors first so i think all parties and i pose in counsel agrees that the critical two factors in the montgomery ward test are the closely intertwined second and third factors which are what the new rules an abrupt departure in the law and the extent of petitioners reliance interests based on the old law now examining these factors this court has said a new rule should apply retroactively so long as it could have been reasonably anticipated such that it was not a complete surprise and very importantly this court clarified in garfield's rodriguez its own b decision that ambiguity in the law and confusion in the law all militate in favor of applying a new rule retroactively because it means there was not a reasonable reliance order based on the old standard about a change in the law that seemed to that's that's correct under petitioners interpretation to question it is your honor and i want to be very very clear about this and let's just get right to it and apply the right the central retroactivity factors here there's three reasons that we think matter d s was not only not a complete surprise but to the contrary it simply solidified a trend in the law that was already taking place does it matter if i remember from the record that the judge who made the change himself declared that he made a mistake in i'm sorry in which decision are you talking about he did i think he made a comment in the subsequent decision i could be mistaken but i thought i did that the judge himself i have suggested that it might have been missed and most certainly not aware of any such opinion  the three reasons that we think matter diaz's very clearly not a complete surprise are first the matter of d s itself said so now i have to be extremely clear about this point because petitioner continues to rely on this literal permanent deprivation language what matter of d s a is it recognised that the long standing definition of theft had required an intent to permanently deprive in that very same paragraph however matter diaz clarified that the board over time had interpreted that standard to include less than permanent deprivations and i'll take the opinion right now and i'm quoting here at the same time we have found it appropriate to presume absent evidence to the contrary that retail theft and theft of cash involve an intent to permanently deprive the owner of the merchandise or cash without the necessity of affirmative proof now it's citing matter of ger from two thousand and six and matter of grassley a board decision from one nine hundred seventy three the board goes on to describe these cases as finessing the distinction between permanent and temporary and in fact says that that new sort of the blurred lines are one of the reasons that it was important to clarify the law in matter of d s so that's one very important point these two decisions have now been relied upon for years and in the case of a matter of grassley decades by the board honor there's no question and i think there are for purposes of crime involving moral turpitude you say it makes no difference well i think this is an important point it's a good question i think what the board was trying to do and matter diaz was not just open the door all of a sudden and say look not just permanent but let's open it up to all temporary deprivations various and it seems that we have to say it's not all that you're on and i want to be very clear about this what they're doing is defining permanent to include what they consider to be virtually permanent and and that's exactly what the board had started to capture in decisions like matter of herat it will cut it with that what would that mean to you substantially wrote the owner's interest and property well i think some of the examples that matter of d kids are perfectly on point and this is i think the best way to think about this is stealing something from a store and then trying to get a refund when you return it or taking something from somebody and try and giving it back only upon getting a reward from them or perhaps even just damaging a product i mean that's that's what it is what's at issue here and that's what matter dia is meant to address is that the original dichotomy of permanent versus temporary was just meant to distinguish between sort of a substantial reprehensible takings and de minimus ones and then it became clear over time that that sort of permanent temporary dichotomy wasn't capturing the reality that there are even temporary takings that are just as culpable as permanent ones and they would include the examples i just gave you you could take something temporarily but you could either damage it or you could go it back to somebody only upon receiving value for it and those things have permanent culpable effect even if they're not tempered if they're the immigration court decided the carriers well for our purposes in the way the government and even petitioners brief it it's the question is whether matter diaz should apply retroactively and in answering that question and i think really what this whole case center very easily could be read in both directions and so i want to take the sentence that you just started there we conclude that early jurisprudence because that's actually i think the line the petitioner must be citing when they say literally permanent so we conclude that or early jurisprudence does not provide us with good reasons to persist in the rule that moral turpitude requires a taking involving a literally permanent intended depravation now this is after the court has already the board sorry has identified that the board has started to to apply permanent in a less than a literal way and so the manner diaz was trying to do is clarify that to the extent that it had ever required a literal permanent deprivation those cases were overruled and you don't need to take my word for that you can you can read the last line of the decision therefore to the extent that any of our prior decisions have required a literal intent to permanently deprive in order for a theft offense to be a crime involving moral otherwise all that's out the door and now we have a clean well no i mean it is definitely clean and there's no question that there was no clean room before it was not it was not very clean but i think even where was it clean at all if they're telling you i mean we have that same language in our cases when we say to the ace and sure that there is a problem because we realize there's no clean rule therefore you see that in a lot of circuit now we make it right well but you're  t and to be clear i'm not saying that this has become a very that it's become very clear what permanent or almost permanent is what we're saying is that that is at least what the standard has become the sort of unclear permanent but not literally permanent standard and the whole point of matter of diaz was to clarify what this new standard is this court has already recognized this by the way this is the second reason that we think we think it's very clear matter vs is not a complete surprise this court and it it is your honor i mean i suppose there are going to be other cases where what the supreme court made sure is and i think i think there may be other cases in which somebody tries in which the government would invoke matter of the dia as retroactively depending on how the court rules here certainly there's there's convictions that predated and so it just depends on the timing i can't emphasize enough that this court in castillo cruz in two thousand and nine already said that california theft under section forty eight four is categor crime involving moral two turpitude notwithstanding the fact that the california supreme court has clearly defined that crime to include less than permanent takings now this court didn't explicitly address that construction statute that addresses less than permanent takings but there have been repeated challenges to that holding claiming that it must be over broad section for it for because it includes less than permanent takings and this court has consistently rejected those challenges and specifically continue to cite because steel crews including just recently in heredia been to reverse the sessions one of the cases we cited in our statement related cases so this court itself has recognized that and then the final point is that other courts have similar recognized cited converses sessions in our brief in that case the fifth circuit recognized that i think it is an oklahoma municipal ordinance and i know there are some other cases there and i don't want to short those up but we we see them in the brief would you question is with respect to the argument that matter of he minds that i know i understand your argument and i think you know argument it's a statement they made sure i understand what you were  adverting to your honor and i think when i say matter diaz and saying we didn't respond because we think mattered yes actually explicitly addresses this point when they cite matter of t matter just recognize that there was an attorney general decision hanging out there and it references a little permanent versus temporary distinction and the board in matter diaz described that case is just simply saying there are substantial versus de minimus takings nobody has ever seriously suggested that the board could not revisit that definition without an express attorney general decision and indeed the attorney general or the board has continued to refine that definition in matter of herat or dog audio and matter of grassley so there's really no serious consideration here and it requires  talking about literally permanent then i think that's probably under the argonne statute that he was convicted right well the aurion statute again the oregon statute defines it pursuant to the model penal code so they say permanent defines it to be permanent or in a way erodes a major tenant benefit of the property itself and again other courts have already started to interpret that exact same language so even pretty d s if you include an immigration judge never made a determination empty analysis i think this is the immigration judge like the board said they required less than a permanent taking but even that would constitute a categorical crime involving more accepted and i see that my time is up your honor thank you i asked the court deny this petition for a view thank thank your honor just a few quick things it appears that the government continues not to argue that not to contest that mr garcia wins under the old rule and they are going only for retroactivity  so if this court finds that it does not apply retroactively then it would grant the petition for you we would ask the government tries to make a reference to retail theft i'm not sure what exactly it's talking about since this is categorical approaching this board member who decided mr garcia's case who also three months later wrote deep as laser raga in mr garcia's case he said well we don't apply permanently we don't mean that literally and then three months later he said well we've always a level had said that this canadian tax statute is not larceny as we in our country understand larceny we would not call it by that name in our country because it does not require literally permanent taking and then in a very terse opinion the attorney general says i am reversing the majority of the i have because we would not call this theft in our country this does not go by the name of theft and clearly referring to the on your farm gives and done for participating in our pro bono program it's very helpful to the court and i think i think mr zaidi for his argument i think it's also helpful to the government in these type of cases where we have