NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS ENRIQUE CONTRERAS RIVAS, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-73031 

Agency No. A071-520-267 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 15, 2024

Pasadena, California

Before: COLLINS, H.A. THOMAS, and JOHNSTONE, Circuit Judges.

Carlos Enrique Contreras Rivas, a citizen of Guatemala, petitions for review 

of a decision of the Board of Immigration Appeals (“BIA”) affirming a decision by 

an Immigration Judge (“IJ”) denying his applications for asylum, withholding of 

removal, protection under the Convention Against Torture (“CAT”), cancellation 

of removal, and special rule cancellation of removal under the Nicaraguan 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUN 25 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Adjustment and Central American Relief Act (“NACARA”). We have jurisdiction 

under 8 U.S.C. § 1252. We deny in part and dismiss in part. 

1. “We review the agency’s factual findings, including credibility 

determinations, for substantial evidence.” Dong v. Garland, 50 F.4th 1291, 1296 

(9th Cir. 2022) (citing Kumar v. Garland, 18 F.4th 1148, 1153 (9th Cir. 2021)). 

We defer to the agency’s factual findings unless “any reasonable adjudicator would 

be compelled to conclude to the contrary based on the evidence in the record.” 

Singh v. Garland, 57 F.4th 643, 651 (9th Cir. 2022) (quoting Aden v. Wilkinson, 

989 F.3d 1073, 1079 (9th Cir. 2021)).

Contreras claims that the agency did not give him an opportunity to explain 

certain inconsistencies in his testimony and failed to give specific and cogent 

reasons for rejecting the explanations he did provide.

1 See Jie Cui v. Holder, 712 

F.3d 1332, 1336 (9th Cir. 2013); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th 

Cir. 1999). But the record demonstrates that the agency provided Contreras with 

multiple opportunities to explain inconsistencies in his testimony and that it 

provided specific, cogent reasons for its adverse credibility determination. For 

example, Contreras testified inconsistently about whether he was a member of

Organización del Pueblo Armado (“ORPA”) and Ejército Guerrero de los Pobres

1 Although Contreras also claims that the BIA applied the wrong standard of 

review, this claim is not supported by the record. 
3 

(“EGP”) and his level of participation in those groups. The IJ reasonably found his 

“equivocating” testimony and proffered explanations unconvincing. See Aguilar 

Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020). These inconsistencies went to 

the heart of his claim of persecution based on political opinion, and are therefore 

sufficient to support the agency’s adverse credibility determination.2 See Singh v. 

Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006), overruled on other grounds by 

Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015).

2. Contreras argues that: (1) the phrase “crime involving moral turpitude”

(“CIMT”) is unconstitutionally vague; (2) California Penal Code Section 647(a) 

lacks the requisite mens rea and harm to a victim to constitute a CIMT; and (3) the 

BIA’s application of Matter of Alfonzo-Bermudez, 12 I. & N. Dec. 225 (BIA 

1967), to Contreras was impermissibly retroactive. We lack jurisdiction to review a 

final order of removal based on a petitioner’s conviction of a CIMT but retain

jurisdiction to determine whether a petitioner’s conviction is in fact a CIMT as 

defined in the INA. Betansos v. Barr, 928 F.3d 1133, 1137 (9th Cir. 2019).

2 With the exception of his application for cancellation of removal under 8 U.S.C. 

§ 1229b, Contreras filed his applications for relief before the passage of the REAL 

ID Act. Accordingly, we apply pre-REAL ID Act legal standards to any such 

claims. See Garcia-Milian v. Holder, 755 F.3d 1026, 1031 n.2 (9th Cir. 2014). 

Because the adverse credibility determination is dispositive of Contreras’s claims 

for asylum and withholding of removal, we do not reach the parties’ arguments 

about the material support bar issue. See Farah v. Ashcroft, 348 F.3d 1153, 1156

(9th Cir. 2003); INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam).
4 

First, the phrase “crime involving moral turpitude” is not unconstitutionally 

vague. Jordan v. De George, 341 U.S. 223, 231–32 (1951); Islas-Veloz v. 

Whitaker, 914 F.3d 1249, 1251 (9th Cir. 2019). 

Second, the BIA has determined that a violation of Section 647(a) is a 

CIMT. Alfonzo-Bermudez, 12 I. & N. Dec. at 227. The BIA’s determination was 

reasonable. Cf. Betansos, 928 F.3d at 1138–42. We therefore must defer to it. See

id. at 1141–42; Marmolejo-Campos v. Holder, 558 F.3d 903, 910–11 (9th Cir. 

2009) (en banc).

Third, applying, as we must, the test we adopted in Montgomery Ward & 

Co., Inc. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982), we conclude that the BIA’s 

decisions in Alfonzo-Bermudez and Matter of Cortes Medina, 26 I. & N. Dec. 79

(BIA 2013), through our decision in Betansos, apply retroactively to Contreras.3

The first factor of the Montgomery Ward test—whether the case is one of 

first impression—does not apply in the immigration context. Reyes v. Garland, 11 

F.4th 985, 992 (9th Cir. 2021). The second and third factors—whether the new rule 

3 Contreras argues that the government has effectively waived the argument that 

Betansos has an impermissibly retroactive effect upon Contreras by failing to 

address this point in its answering brief. In its brief, the government argued that 

“Contreras provides no compelling reason for his argument that the [BIA] 

unreasonably applied its own precedent, particularly where, as both the [BIA] 

noted and Contreras admits, the decision remains good law and was lawful 

precedent at the time of the [BIA’s] decision.” We find that the government did not 

waive the issue. 
5 

is an abrupt departure from well-established practice, and the extent to which the 

party against whom the rule is applied relied on the former rule—do not favor 

Contreras. See Garfias-Rodriguez v. Holder, 702 F.3d 504, 521 (9th Cir. 2012) (en 

banc). Although “a petitioner’s expenditure of fees in reliance on favorable, wellsettled precedent may constitute a sufficient reliance interest,” our decision in

Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), was not “well-settled precedent” 

at the time Contreras filed his appeal because the BIA’s decision in Cortes Medina

directly conflicted with it. Betansos, 928 F.3d at 1145. He thus does not have a 

sufficient reliance interest. The fourth factor—the degree of burden imposed by a 

retroactive application of the rule—favors Contreras, as “deportation alone is a 

substantial burden that weighs against retroactive application of an agency 

adjudication.” Id. (quoting Garfias-Rodriguez, 702 F.3d at 523). But the fifth 

factor—statutory interest in applying the new rule—weighs in favor of the 

government because “non-retroactivity impairs the uniformity of a statutory 

scheme, and the importance of uniformity in immigration law is well established.” 

Id.

Because the balance of the Montgomery Ward factors weighs against 

Contreras, the BIA’s decisions in Alfonzo-Bermudez and Cortes Medina, through 

our decision in Betansos, apply retroactively to him. 

3. Contreras argues that the agency impermissibly found that he failed to 
6 

establish that he was a registered ABC class member. The BIA found that there 

was no evidence other than Contreras’s testimony that he was a registered ABC 

class member. Because this is “a purely factual issue over which this court lacks 

jurisdiction,” we dismiss this part of the petition. Ixcot v. Holder, 646 F.3d 1202, 

1214 (9th Cir. 2011) (quoting Molina Jerez v. Holder, 625 F.3d 1058, 1069 (8th 

Cir. 2010)). 

4. Contreras forfeited review of his claim for CAT protection by not 

presenting any argument in his briefs regarding that claim. See Hernandez v. 

Garland, 47 F.4th 908, 916 (9th Cir. 2022). 

DENIED in part and DISMISSED in part.

4

4 We grant the Florence Immigrant and Refugee Rights Project’s motion for leave 

to file an amicus brief, Dkt. No. 38. We deny Contreras’s motion for judicial 

notice, Dkt. No. 34, as moot.