NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO ZAMBRANO AMEZCUA,

Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 22

- 1227 Agency No. A099

- 067

- 748

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals
Submitted September 11, 2023 ** Pasadena , California
Before: M. SMITH , FRIEDLAND, and MILLER , Circuit Judges

. Sergio Zambrano Amezcua , a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals dismissing his appeal of an immigration judge’s de cision pretermitting his application for cancellation
of removal

. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

SEP 13 2023
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 22

- 1227

We assume without deciding that the Board’s decision in Matter of Wu

— holding that assault with a deadly weapon under California Penal Code section 245(a)(1) is categorically a crime involving moral turpitude

— marked a change in the law from 2003, when Zambrano Amezcua pleaded guilty to that crime. 27
I. & N. Dec. 8 , 9 (B

. I

. A

. 2017) ; s ee Olivas

- Motta v. Whitaker , 910 F.3d 1271, 1276 (9th Cir. 2018)

. “Whether a new agency interpretation may be applied retroactively is a question of law , ” which we review de novo. Id. at 1275

. The Board correctly held that Wu applies retroactively to Zambrano
Amezcua. To determine whether an adjudicatory decision by an agency has
retroactive effect , we apply the multi

- factor balancing test laid out in Montgomery Ward & Co. v. FTC , 691 F.2d 1322, 1333 (9th Cir. 1982)

. See
Lemus v. Lynch , 842 F.3d 641, 649 (9th Cir. 2016). Under th at test, the court
considers “ (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old
standard. ” Montgomery Ward , 691 F.2d at 1333 (quoting Retail, Wholesale & Dep ’ t Store Union v. NLRB , 466 F.2d 380, 390 (D.C. Cir. 1972)).
The first factor favors neither party. Acosta

- Olivarria v. Lynch , 799 F.3d 1271, 1275 (9th Cir. 2015). That factor was “meant to ensure tha t the party3 22

- 1227

responsible for a change in law receives the benefits of the new rule,” but in the immigration context, where the government is always a party, “this concern is
less relevant.” Id. (citing Garfias

- Rodriguez v. Holder , 702 F.3d 504 , 52 0

– 2 1 (9th Cir. 2012) (en banc ))

. The second and third factors favor retroactivity. Th o se factors “a r e closely intertwined ” and “ will favor retroactivity if a party could reasonably have anticipated the change in the law such that the new ‘ requirement would not be a complete surprise. ’” Garfias

- Rodriguez , 702 F.3d at 521 (quoting Montgomery Ward , 691 F.2d at 1333

– 34 ). For Zambrano Amezcua, t he rule
announced in Wu could not have been a complete surprise. W hen Zambrano Amezcua pleaded guilty to assault with a deadly weapon, it was unclear
whether th at offense was a crime involving moral turpitude , with conflicting precedents pointing in different directions

. Compare Gonzale s v. Barber , 207 F.2d 398, 400 (9th Cir. 1953) ( holding that assault with a deadly weapon under
California law is , “per se,” a crime involving moral turpitude ) , overruled by
Ceron v. Holder , 747 F.3d 773, 781 (9th Cir. 2014) (en banc) , with Carr v.
INS , 86 F.3d 949, 951 (9th Cir. 1996) ( h oldin g that a ssault with a firearm
under California Penal Code section 245(a)(2) is not a crime involving moral turpitude ), overruled by Ceron , 747 F.3d at 78 2. Wu simply settled this open question

. The fourth factor weighs against retroactivity, for “ d eportation alone is a substantial burden that weighs against retroactive application of an agency4 22

- 1227

adjudication.” Garfias

- Rodriguez , 702 F.3d at 52 3 (quoting Miguel

- Miguel v. Gonzales , 500 F.3d 941, 952 (9th Cir. 2007 ) )

. Finally, the fifth factor favors retroactivity , “because non

- retroactivity impairs the uniformity of a statutory scheme, and the importance of uniformity in immigration law is well established.” Garfias

- Rodriguez , 702 F.3d at 523.
Overall , the Montgomery Ward factors weigh in favor of applying Wu to Zambrano Amezcua retroactively . And under Wu , Zambrano Amezcua’s conviction for assault with a deadly weapon under California Penal Code
section 245(a)(l) is categorically a crime involving moral turpitude. 27 I. & N.
Dec. at 9. Zambrano Amezcua is therefore ineligible for cancellation of
removal. S

ee 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C)

. The motions to stay removal (Dkt. Nos. 2, 10) are denied. The temporary stay of removal is lifted upon issuance of the mandate.
PETITION DENIED.