Not for Publication in West's Federal Reporter



# United States Court of Appeals

For the First Circuit

No. 19

- 1468
LAZARO ANTONIO MEJIA , Petitioner,

v. MERRICK B. GARLAND, * Attorney General,

Respondent.

No. 20

- 2204
LAZARO ANTONIO MEJIA , Petitioner,

v. MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION S FOR REVIEW OF ORDER S OF THE BOARD OF IMMIGRATION APPEALS

Before Lynch , Lipez , and Howard , Circuit Judges
.

* Pursuant to Fed eral R ule of App ellate P rocedure 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr.- 2

-

Stephen A. Lagana , with whom Law Offices of Stephen A. Lagana was on brief, for petitioner
. M. Jocelyn Lopez Wright , Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice , with whom Joseph H. Hunt , Assistant Attorney General, Civil Division , Brian Boynton , Acting Assistant Attorney General, Civil Division, and Melissa Neiman

- Kel ting , Assistant Director, Office of Immigration Litigation , were on brief, for respondent
.
June 11, 2024- 3

- PER CURIAM
. These petitions are not the first that we have addressed in this case
. W e previously remanded this case to the Board of Immigration Appeals ( BIA ) and directed the BIA to reexamine its reliance on In re Jurado

- Delgado , 24 I&N Dec. 29 (BIA 2006) , and properly apply the modified categorical approach in determining whether Lazaro Antonio Mejia had committed crimes involving mor al turpitude (CIMT s )
. See Mejia v. Holder , 756 F.3d 64 , 68

- 69 (1st Cir. 2014)
. 1 Now before us again in Petition for Review 19

- 1468, w e are unable to conclude that the BIA did as instructed.

On remand, the BIA applied the interpretation of CIMT developed in In re D iaz

- Lizarraga , 26 I&N Dec. 847 (BIA 2016) , 2 which had "update[d]" the BIA's definition of theft

- related CIMTs. Id. at 852. Where theft

- related CIMTs once required an intent to permanently deprive, Diaz

- Lizarraga expanded the definiti on of
CIMT to include any theft crime " where the owner's property rights are substantially eroded
. " Id. at 853.

1 The underlying facts are described in our previous opinion , and we do not repeat them here.

2 Alt hough on remand the BIA had conducted a n initial analysis applying pre - Diaz

- Lizarraga precedent , the B oard's reasoning was never reviewed by this court because the government moved, unopposed, to remand a second time for the BIA to "engage in the full categorical analysis" and " address the effec t of its decision in Matter of Diaz

- Lizarraga ." I n P etition for R eview 19

- 1468 , Mejia now seeks review of that second analysis.- 4

- But the BIA decided Diaz

- Lizarraga in 2016 , and a ppl ying Diaz

- Lizarraga to Mejia's 2012 and 1999 guilty plea s would appear
to retroactively impose a major and unforeseeable policy change on

a n unsuspecting petitioner
. See id. at 849 , 852 ( stating Diaz

Lizarraga " update [d] " policy that had existed "[f]rom the Board's earliest days "); see also Garcia

- Martinez v. Se ssions , 886 F.3d 1291, 12 95 (9th Cir. 2018) ( deeming Diaz

- Lizarraga " a rather abrupt change in the law, to say the least "); Monteon
- Camargo v. Barr , 918 F.3d 423, 43 1 (5th Cir. 2019) (same) ; Obeya v. Sessions , 884 F.3d 442 , 447

- 49 (2d Cir. 2018) (same). As t he government acknowledges , t his retroactive application of Diaz

- Lizarraga imposes a s evere burden on M ejia , who faces removal from the country that has been his home for thirty

- six years
. See Padilla

v. Kentucky , 559 U.S. 356 , 365 (2010) ( characterizing deportation

as a particularly severe penalty ); Obeya , 884 F.3d at 44 5 ; Garcia

Martinez , 886 F.3d at 129 5; Francisco

- Lopez v. Att'y Gen. U.S. , 970 F.3d 431 , 439

- 40 (3d Cir. 2020)
.

We have been clear that r etroactive application of
agency policy developed through adjudication can violate due
process if it adversely upset s reasonable reliance interests
. See United States v. Hoyts Cinemas Corp. , 380 F.3d 558 , 573 & n.11 (1st Cir. 2004) ( quoting Cheshire Hosp. v. N.H.
- V t. Hospitalization Serv., Inc. , 689 F.2d 1112, 1121 & n.10 (1st Cir. 1982) ) ; cf. Molina v. INS , 981 F.2d 14, 22

- 23 (1st Cir. 1992)- 5

-

( allowing retroactive adjudication unless clear legal authority
warrant s reliance on old policy )
. Other circuits and the BIA have endorsed detailed frameworks to balance the merits and demerits of adjudicative retroactivity pursuant to SEC v. Chenery Corp. , 332 U.S. 194 , 203 (1947)
. S ee Retail, Wholesale & Dep't Store Union,
AFL
- CIO v. NLRB , 466 F.2d 380 , 390 (D.C. Cir. 1972) ; 3 Microcomputer Tech. Inst. v. Riley , 139 F.3d 1044, 1050 (5th Cir. 1998) ; Gutierrez

- Brizuela v. Lynch , 834 F.3d 1142, 1145

- 46 & 1146 n.1 (10th Cir. 2016). Yet here , the BIA did not mention retroactivity , much less weigh its adv antages and disadvantages
. We think it best that the BIA consider these and other issues in the first instance , accepting new briefing from the parties as needed
.

In P etition for R eview 20

- 2204 , Mejia also challenges
t he BIA's separate denial of his motion to reopen, but the BIA's reasoning here suffers from no deficiencies
. The BIA h as considerable discretion to determine whether "truly exceptional" circumstances warrant sua sponte reopening, Thompson v. Barr , 959

3 The Second, Third, Fourth, Sixth, Seventh , and Ninth Circuits follow the D.C. Circuit 's Retail Union test. See, e.g. , Lehman v. Burnley , 866 F.2d 33, 37 (2d Cir. 1989); Dole v. E. Penn Mfg. Co. , 894 F.2d 640, 647 (3d Cir. 1990); NLRB v. Ensign Elec. Div. of Harvey Hubble, Inc. , 767 F.2d 1100, 1103 n.2 (4th Cir. 1985); J.L. Foti Constr. Co. v. OSHA Review Comm'n , 687 F.2d 853, 858 (6th Cir. 1982); NLRB v. Wayne Transp. , 776 F.2d 745, 751 (7th Cir. 1985); Oil, Chem. & Atomic Workers Int'l Union Local 1

– 547 v. NLRB , 842 F.2d 1141 , 1145 (9th Cir. 1988). T he BIA followed suit in 2019. See In re C ordero

- Garcia , 27 I&N Dec. 652 , 657 (BIA 2019).- 6

-

F.3d 476, 480 (1st Ci r. 2020 ) (quoting In re G

- D
- , 22 I&N Dec. 1132, 1134 (BIA 1999) ) , and it reasonably concluded that Mejia failed to prove that his 1999 shoplifting conviction was vacated due to procedural or substantive invalidity , see Rumierz v. Gonzales , 456 F.3d 31, 40 (1st Cir. 2006)
. The BIA utilized the correct legal standard and did not exercise its judgment arbitrarily, capriciously, or irrationally. See Thompson , 959 F.3d at 480
. Petitioner's claim thus does not warrant relief.

*** For the foregoing reasons , in 19

- 1468 we VACATE and
REMAND to the BIA for further proceedings , and in 20

- 2204 we DENY the petition.