NOT FOR PUBLICATION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 decision 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 APPEALS
2 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); see 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 that 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 that the party 
3 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, 520–21

(9th Cir. 2012) (en banc)).

The second and third factors favor retroactivity. Those factors “are 

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, the rule 

announced in Wu could not have been a complete surprise. When Zambrano 

Amezcua pleaded guilty to assault with a deadly weapon, it was unclear 

whether that offense was a crime involving moral turpitude, with conflicting 

precedents pointing in different directions. Compare Gonzales 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) (holding that assault 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 782. Wu simply settled this open 

question.

The fourth factor weighs against retroactivity, for “deportation alone is a 

substantial burden that weighs against retroactive application of an agency 
4 22-1227

adjudication.” Garfias-Rodriguez, 702 F.3d at 523 (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. See 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.