FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOEL EMPLEO SILVA,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

Nos. 16-70130

17-73272

Agency No.

A045-476-155

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 16, 2020*

San Francisco, California

Filed July 10, 2020

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit

Judges, and Ivan L.R. Lemelle, District Judge.**

Opinion by Judge Ikuta;

Concurrence by Judge Berzon

* The panel unanimously concludes this case is suitable for decision

without oral argument, and the case is therefore submitted on the briefs as

of April 16, 2020. See Fed. R. App. P. 34(a)(2).

** The Honorable Ivan L.R. Lemelle, United States District Judge for

the Eastern District of Louisiana, sitting by designation.
2 SILVA V. BARR

SUMMARY***

Immigration

Denying Joel Empleo Silva’s petitions for review of

decisions of the Board of Immigration Appeals, the panel

concluded that Silva’s conviction for petty theft under section

484(a) of the California Penal Code is a crime involving

moral turpitude, and that the BIA did not abuse its discretion

in denying Silva’s motion to reopen to seek asylum and

related relief based on changed country conditions in the

Philippines.

Silva was convicted of violating section 484(a) of the

California Penal Code in 1998, 2004, and 2007. Addressing

the BIA’s interpretation of crimes involving moral turpitude,

the panel observed that, prior to 2016, the BIA had held that

a theft offense did not categorically involve moral turpitude

unless it involved a permanent taking, as distinguished from

a temporary one. However, in Matter of Diaz-Lizarraga,

26 I. & N. Dec. 847 (BIA 2016), the BIA held that a theft

offense may involve moral turpitude despite the fact that it

does not require the accused to intend a literally permanent

taking. This court subsequently held in Garcia-Martinez v.

Sessions, 886 F.3d 1291 (9th Cir. 2018), that the BIA’s new

rule would not apply to persons who were convicted before

November 16, 2016, the date on which the BIA issued Matter

of Diaz-Lizarraga.

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SILVA V. BARR 3

Addressing the elements of Silva’s conviction, the panel

observed that, in People v. Davis, 19 Cal. 4th 301 (1998), the

California Supreme Court explained in dicta that section

484(a) includes the intent to deprive the owner permanently

of possession of the property, but the word permanently

should not be taken literally, and temporary takings could

amount to theft in some circumstances. In People v. Avery,

27 Cal. 4th 49 (2002), the California Supreme Court

definitively held that a person could be convicted under

section 484(a) even if that person did not intend to effect a

literally permanent taking of property.

The panel explained that, if it were writing on a clean

slate, the categorical analysis would proceed as follows. 

Silva was convicted of violating section 484(a) in 1998, 2004,

and 2007. According to Garcia-Martinez, at those times, the

BIA’s generic definition of a theft offense involving moral

turpitude required the intent to permanently deprive the

owner of the property. But by 1998, under Davis, it was

questionable whether a violation of section 484(a) required

that the offender intend a literally permanent deprivation of

property, and by 2004, under Avery, it was clear that section

484(a) did not require such an intent. Therefore, at the time

of at least two of Silva’s offenses, section 484(a) criminalized

more conduct than the BIA’s generic theft offense involving

moral turpitude, and so the state statute did not categorically

define a crime involving moral turpitude. Thus, Silva would

not be removable under 8 U.S.C. § 1227(a)(2)(A)(ii) because

he was not convicted of two or more crimes involving moral

turpitude. 

However, the panel pointed out that it was not writing on

a clean slate, and that both before and after Avery, this court

held that section 484(a) was a crime involving moral
4 SILVA V. BARR

turpitude. The panel noted that Garcia-Martinez put those

earlier opinions in question because they failed to analyze the

potential distinction between the intent requirement in section

484(a) and the BIA’s articulation of the intent required before

Matter of Diaz Lizarraga. However, the panel concluded that

it was nevertheless bound by circuit precedent. The panel

explained that in this circuit, a three-judge panel must apply

binding precedent even when it is clearly wrong because, for

example, it failed to recognize an intervening change in the

law. The panel noted that only an en banc court has the

power to fix such errors. The panel further explained that a

three-judge panel can reconsider the law of the circuit only

when the relevant court of last resort has undercut the theory

or reasoning underlying the prior circuit precedent in such a

way that the cases are clearly irreconcilable, or when a threejudge panel must follow an agency construction entitled to

deference under Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005), neither of which apply

here. The panel therefore held that Silva’s three separate

violations of section 484(a) constitute crimes involving moral

turpitude. 

Turning to Silva’s motion to reopen, the panel held that

the BIA did not abuse its discretion in denying Silva’s motion

to reopen because he failed to establish prima facie eligibility

for asylum and related relief based on changed country

conditions. Silva sought to reopen proceedings based on his

history of drug use and his fear of persecution or torture

under Philippine President Rodrigo Duterte’s anti-drug

program. The panel noted that Silva did not contend that he

suffered past persecution, and merely speculated that

someone in the Philippines could report his past drug use to

the government, or that he might succumb to the temptation

to begin using drugs again. Because Silva failed to submit
SILVA V. BARR 5

any specific evidence that such events might occur, the panel

held that Silva failed to establish prima facie eligibility for

relief. 

Judge Berzon concurred in the majority opinion in full,

but wrote separately to reiterate her view that the phrase

“crime involving moral turpitude” is unconstitutionally

vague.

COUNSEL

Francisco Miguel Ugarte, Office of the Public Defender, San

Francisco, California, for Petitioner.

Joseph H. Hunt, Assistant Attorney General; Song Park and

Papu Sandhu, Acting Assistant Directors; Christina P. Greer,

Trial Attorney; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

IKUTA, Circuit Judge:

Under our precedent, petty theft under section 484(a) of

the California Penal Code is a crime involving moral

turpitude. See, e.g., Castillo-Cruz v. Holder, 581 F.3d 1154,

1160 (9th Cir. 2009). Although we question whether this

precedent was correctly decided, we have no authority to

revisit it here. We also hold that the Board of Immigration

Appeals (BIA) did not abuse its discretion in denying the

petitioner’s motion to reopen.
6 SILVA V. BARR

I

Joel Empleo Silva was admitted to the United States as a

lawful permanent resident on June 27, 1996. After

admission, Silva was convicted of petty theft offenses under

the California Penal Code on three separate occasions: in

1998, he was convicted of petty theft in violation of sections

484(a) and 490.5,1and in 2004 and 2007, he was convicted of

petty theft with a prior theft conviction in violation of

sections 484(a) and 666.

2 Silva was also convicted of

attempted theft in violation of section 664 in 2000.

In May 2015, the Department of Homeland Security

charged Silva as removable for having been “convicted of

two or more crimes involving moral turpitude,” 8 U.S.C.

1 Section 484(a) states, in pertinent part, “Every person who shall

feloniously steal, take, carry, lead, or drive away the personal property of

another . . . is guilty of theft.” Cal. Pen. Code § 484(a). Section 484(a)

encompasses both petty and grand theft; the elements of petty theft are the

same as grand theft, apart from the amount or type of property taken. See

Cal. Pen. Code §§ 487, 488; United States v. Esparza-Ponce, 193 F.3d

1133, 1137 (9th Cir. 1999).

Section 490.5 prescribes the punishment for a “first conviction for

petty theft involving merchandise taken from a merchant’s premises.” 

Cal. Pen. Code § 490.5. Silva was charged with stealing merchandise

from a J. C. Penney department store.

2 At all relevant times, section 666 allowed for heightened

punishments of persons convicted of petty theft after having served time

based on a prior petty theft conviction. See Cal. Penal Code § 666

(effective Jan. 1, 2001 to Sep. 8, 2010).
SILVA V. BARR 7

§ 1227(a)(2)(A)(ii),3referencing Silva’s three petty-theft

offenses and his attempted-theft conviction. An immigration

judge held that Silva was removable as charged.

In December 2015, the BIA dismissed Silva’s appeal. It

rejected Silva’s argument that a violation of section 484(a)

did not qualify as a crime involving moral turpitude because

the Ninth Circuit had “repeatedly held that it is.” The BIA

expressed no opinion on Silva’s argument that the phrase

“crimes involving moral turpitude” was unconstitutionally

vague, holding that it lacked jurisdiction to declare an act of

Congress unconstitutional. Silva petitioned for review.

While the petition was pending, Silva moved to reopen

proceedings in light of changed country conditions in the

Philippines, for the purpose of applying for asylum,

withholding of removal, and protection under the Convention

Against Torture (CAT). In his motion, Silva made the

following allegations. After Rodrigo Duterte was elected

president of the Philippines, he instituted an anti-drug

program that included an initiative called Oplan

Tokhang—roughly translated as “knock and plead”—which

focused on low-level sellers and users. Under Oplan

Tokhang, police and local officials visited the houses of

suspected drug sellers and users and demanded that they

cooperate with the police. Suspects who did not cooperate,

or who initially cooperated but then returned to using or

selling, were reportedly killed.

3 Section 1227(a)(2)(A)(ii) provides, “Any alien who at any time after

admission is convicted of two or more crimes involving moral turpitude,

not arising out of a single scheme of criminal misconduct, regardless of

whether confined therefor and regardless of whether the convictions were

in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii).
8 SILVA V. BARR

Silva also alleged that his history of drug use would put

him at risk if he returned to the Philippines. In a declaration

submitted with his motion to reopen, Silva testified that he

had regularly used methamphetamine while in the United

States from the late 1990s until 2015 and that he had used a

cheap form of the drug called “shabu” daily with friends and

neighbors when he returned to the Philippines for three

months in early 2000. After being taken into immigration

custody in May 2015, Silva stopped using drugs and has

continued to abstain from drug use after his release, even

though he had “been tempted many times by [a] friend.” 

Despite abstaining from drugs, Silva claims that if he returns

to the Philippines, the people who knew him when he was

there in 2000 could “rat him out” to the police as a former

drug user. Further, Silva believes that “it will be very hard

for [him] to resist the temptation to start using shabu” in the

Philippines.

The BIA denied Silva’s motion to reopen. The BIA

reasoned that Silva had not shown that Filipino authorities

were aware or would become aware of his past drug use. Nor

had Silva shown that he would use drugs in the Philippines. 

Therefore, the BIA held that Silva had not made out a prima

facie case for asylum, withholding of removal, or CAT

protection. Silva petitioned for review.

We consolidated Silva’s two pending petitions for review. 

See 8 U.S.C. § 1252(b)(6). We have jurisdiction over both

petitions based on 8 U.S.C. § 1252(a)(1). See Mata v. Lynch,

576 U.S. 143, 147 (2015).4

4 Silva stated that the criminal-alien bar, 8 U.S.C. § 1252(a)(2)(C)—

which limits our jurisdiction “to review any final order of removal against

an alien who is removable by reason of having committed” various
SILVA V. BARR 9

II

We first turn to Silva’s petition for review of the BIA’s

December 2015 order of removal. On appeal, Silva argues

that he is not removable for having been convicted “of two or

more crimes involving moral turpitude,” 8 U.S.C.

§ 1227(a)(2)(A)(ii), because a violation of section 484(a) of

the California Penal Code does not involve moral turpitude.

To determine whether an alien’s crime of conviction

subjects the alien to removal under 8 U.S.C.

§ 1227(a)(2)(A)(ii), we apply the categorical approach set

forth in Taylor v. United States, 495 U.S. 575 (1990). 

Marmolejo-Campos v. Holder, 558 F.3d 903, 912 (9th Cir.

2009) (en banc). That approach requires us to determine

“whether the crime of conviction contains all the elements of

the generic federal offense.” Renteria-Morales v. Mukasey,

551 F.3d 1076, 1081 (9th Cir. 2008).5

A

In making this determination, we begin by defining

the elements of the generic federal offense, id., in this

criminal offenses, including certain crimes involving moral turpitude—

applies here. It does not. Section 1252(a)(2)(C) applies to crimes

involving moral turpitude “for which a sentence of one year or longer

may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i)(II); see 8 U.S.C.

§ 1252(a)(2)(C). But Silva’s petty-theft convictions were not crimes for

which such a sentence may be imposed. Rusz v. Ashcroft, 376 F.3d 1182,

1185 (9th Cir. 2004).

5 Neither party argues that we should apply the modified categorical

approach here, see, e.g., Shepard v. United States, 544 U.S. 13, 26 (2005),

so we do not address that issue.
10 SILVA V. BARR

case, “crimes involving moral turpitude,” 8 U.S.C.

§ 1227(a)(2)(A)(ii). We “defer to the BIA’s articulation of

the generic federal definition ‘if the statute is silent’” and “the

BIA’s interpretation is ‘based on a permissible construction

of the statute.’” Renteria-Morales, 551 F.3d at 1081 (quoting

Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005)). 

The BIA has defined the term “moral turpitude” as referring

to conduct that is “inherently base, vile, or depraved, and

contrary to the accepted rules of morality and the duties owed

between persons or to society in general.” Matter of SilvaTrevino, 26 I. & N. Dec. 826, 833 (BIA 2016) (citation

omitted). The BIA has further explained that “[t]o involve

moral turpitude, a crime requires two essential elements: 

reprehensible conduct and a culpable mental state.” Id. at 834

(citing Nino v. Holder, 690 F.3d 691, 695 (5th Cir. 2012)). 

Although we have framed our definition of “moral turpitude”

in slightly different terms,6it “does not differ materially from

the [BIA’s].” Marmolejo-Campos, 558 F.3d at 910 (citing

Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1058 n.9 (9th

Cir. 2006)). These definitions, however, are not helpful for

our task of identifying the elements of a generic “crime

involving moral turpitude” for purposes of the categorical

approach, because they fail “to ‘particularize’ the term in any

meaningful way.” Id.

Given the difficulty of determining the elements of

“crimes involvingmoral turpitude” as opposed to determining

the elements of a specific criminal offense, the BIA has

adopted a different approach. Because the phrase “crimes

6

“[W]e have traditionally divided crimes involving moral turpitude

into two basic types: ‘those involving fraud and those involving grave

acts of baseness or depravity.’” Marmolejo-Campos, 558 F.3d at 910

(quoting Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005)).
SILVA V. BARR 11

involving moral turpitude” refers to a category of crimes

rather than a specific offense with identifiable elements, cf.

8 U.S.C. § 1101(a)(43), the BIA has sensibly moved from

trying to define the phrase itself to instead giving examples of

the types of offenses that qualify as “crimes involving moral

turpitude,” see, e.g., Matter of Diaz-Lizarraga, 26 I. & N.

Dec. 847, 847 (BIA 2016). We have deferred to this

approach when articulated by the BIA in a published opinion. 

Marmolejo-Campos, 558 F.3d at 910–11.

Using this method of interpretation, the BIA had

concluded that only certain theft offenses involve moral

turpitude. For purposes of the statutory section providing that

the term “aggravated felony” means, among other things, “a

theft offense (including receipt ofstolen property),” 8 U.S.C.

§ 1101(a)(43)(G), the BIA has defined a generic “theft

offense” as one that involves: “[1] taking of property or an

exercise of control over property [2] without consent [3] with

the criminal intent to deprive the owner of rights and benefits

of ownership, even if such deprivation is less than total or

permanent.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189

(2007) (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th

Cir. 2006)). For purposes of defining “crimes involving

moral turpitude,” however, the BIA’s cases from the 1940s

indicated that only theft offenses which “by their nature

necessarily constitute theft or stealing as those offenses are

known at common law” would qualify, Matter of D-, 1 I. &

N. Dec. 143, 145 (BIA 1941), meaning that a theft offense

did not categorically involve moral turpitude unless it

“involve[d] a permanent taking as distinguished from a

temporary one,” Matter of H-, 2 I. & N. Dec. 864, 865 (BIA

1947); accord Matter of P-, 2 I. & N. Dec. 887, 887 (BIA

1947). At common law, however, there were certain

situations where persons were found guilty of larceny despite
12 SILVA V. BARR

not having intended a literally permanent deprivation of

property, see People v. Davis, 19 Cal. 4th 301, 308–15 (1998)

(collecting cases), and the BIA had not conclusively resolved

whether certain theft offenses could involve moral turpitude

even when a person did not intend a literally permanent

deprivation of property, see Matter of Jurado-Delgado, 24 I.

& N. Dec. 29, 33 (BIA 2006) (“We need not decide whether

the premise of the respondent’s argument is correct, i.e., that

if the offense required only an intent to temporarily deprive

the owner of the use or benefit of the property taken, the

crime would not be one of moral turpitude.”).

Against this backdrop, the BIA reexamined the elements

of a theft offense involving moral turpitude in Matter of DiazLizarraga. In doing so, the BIA explained that its “purpose

in adopting the ‘intent to permanently deprive’ requirement

was to distinguish between substantial and reprehensible

deprivations of an owner’s property on the one hand and, on

the other, mere de minimis takings in which the owner’s

property rights are compromised little, if at all.” Matter of

Diaz-Lizarraga, 26 I. & N. Dec. at 850. Since its early

decisions, the BIA observed, criminal law had evolved, and

most jurisdictions had abandoned the “traditional dichotomy

of permanent versus temporary takings.” Id. at 851. 

Accordingly, the BIA updated its jurisprudence to reflect the

majority of states and the Model Penal Code, and held that “a

theft offense is a crime involving moral turpitude if it

involves an intent to deprive the owner of his property either

permanently or under circumstances where the owner’s

property rights are substantially eroded.” Id. at 853. Under

this definition, a theft offense may involve moral turpitude

“despite the fact that it does not require the accused to intend

a literally permanent taking.” Id. at 852 (emphasis omitted). 

Further, the BIA stated that “to the extent that any of our
SILVA V. BARR 13

prior decisions have required a literal intent to permanently

deprive in order for a theft offense to be a crime involving

moral turpitude, those decisions are overruled.” Id. at 855.

We subsequently held that the BIA’s decision to

“abandon the literally-permanent deprivation test” constituted

an abrupt change in law that would impose “a new and severe

burden” if applied to persons who were convicted while the

“old rule was extant.” Garcia-Martinez v. Sessions, 886 F.3d

1291, 1295–96 (9th Cir. 2018). Accordingly, we held that the

BIA’s new rule would not apply to persons who were

convicted before November 16, 2016, the date on which the

BIA issued its decision in Matter of Diaz-Lizarraga. Id.

at 1296. In short, under Garcia-Martinez, the elements of a

generic theft offense involving moral turpitude for

convictions before November 16, 2016 are: (1) the taking of

property or an exercise of control over property (2) without

consent and (3) with the intent of causing a permanent

deprivation of the property. See id. But for convictions after

November 16, 2016, the third element becomes: “[with the]

intent to deprive the owner of his property either permanently

or under circumstances where the owner’s property rights are

substantially eroded.” Matter of Diaz-Lizarraga, 26 I. & N.

Dec. at 852–53.

B

Having identified the BIA’s interpretation of a generic

theft offense involving moral turpitude, we turn to the second

step of the categorical approach, identifying the elements of

the specific crime of conviction. See Renteria-Morales,

551 F.3d at 1081. To determine the elements of a state

statute, “we may consider the interpretation of the statute
14 SILVA V. BARR

provided by state courts.” United States v. Perez, 932 F.3d

782, 785 (9th Cir. 2019).

Section 484(a) of the California Penal Code provides, in

pertinent part, “Every person who shall feloniously steal,

take, carry, lead, or drive away the personal property of

another . . . is guilty of theft.” Cal. Pen. Code § 484(a). In

1993, a California appellate court held that “[a] person who

intends only to temporarily deprive an owner of property,

albeit while acquiring or depriving the owner of the main

value of the property, does not intend to permanently deprive

the owner of the property and therefore does not have the

intent to commit theft, as that crime is defined under

California law.” People v. Marquez, 16 Cal. App. 4th 115,

123 (1993) (emphasis omitted).

The California Supreme Court subsequently cast doubt on

this statement of law. See Davis, 19 Cal. 4th at 318. In

Davis, the California Supreme Court explained in dicta that

section 484(a) includes the intent to “deprive the owner

permanently of possession of the property,” but “[t]he word

‘permanently,’ as used here is not to be taken literally,” id.

at 307 (citation omitted), and temporary takings could amount

to theft in some circumstances, id. at 307 & n.4. In support

of this, Davis explained that section 484(a) “is declaratory of

the common law,” id. at 304 n.1, and cited cases where

defendants were convicted of larceny even though they did

not intend a literally permanent deprivation, id. at 308–15. 

An appellate court subsequently applied Davis’s dicta and

held that “an intent by one to do less than retain property

permanently will constitute theft when the owner’s property

was dealt with in such a way that there was a substantial risk

of permanent loss.” People v. Zangari, 89 Cal. App. 4th

1436, 1447 (2001).
SILVA V. BARR 15

Finally, the California Supreme Court resolved the

disagreement between Marquez and Zangari, and adopted the

dicta in Davis. See People v. Avery, 27 Cal. 4th 49, 55

(2002). Avery held that for purposes of section 484(a), “the

intent to deprive the owner of property only temporarily, but

for so extended a period of time as to deprive the owner of a

major portion of its value or enjoyment, satisf[ies] the

California requirement of intent to deprive the owner of the

property permanently.” Id. at 54–55. As in Davis, the

California Supreme Court explained that this was the intent

required to commit larceny at common law. Id. at 58. In

short, a person could be convicted under section 484(a) even

if that person did not intend to effect a literally permanent

taking of property. Id. at 55.

C

Under the categorical approach, the next step is to

determine “whether the elements of the alien’s state statute of

conviction criminalize more conduct than, or the same

conduct as, the elements of a generic federal offense.” Diego

v. Sessions, 857 F.3d 1005, 1009 (9th Cir. 2017). If the

elements of the specific crime of conviction criminalize the

same or less conduct than the generic offense, the specific

crime of conviction categorically qualifies as a crime

involving moral turpitude. See id.

If we were writing on a clean slate, the third step would

proceed as follows. Silva was convicted of violating section

484(a) of the California Penal Code in 1998, 2004, and 2007. 

According to Garcia-Martinez, at those times, the BIA’s

generic definition of a theft offense involving moral turpitude

consisted of the following elements: (1) the taking of

property or an exercise of control over property (2) without
16 SILVA V. BARR

consent and (3) with the intent to permanently deprive the

owner of the property. See 886 F.3d at 1296. But by 1998 it

was questionable whether a violation of section 484(a)

required that the offender intend a literally permanent

deprivation of property, see Davis, 19 Cal 4th at 307, and by

2004, it was clear that section 484(a) did not require such an

intent, see Avery, 27 Cal. 4th at 55. Therefore, at the time of

at least two of Silva’s offenses, section 484(a) criminalized

more conduct than the BIA’s generic theft offense involving

moral turpitude, and so the state statute did not categorically

define a crime involving moral turpitude. See GarciaMartinez, 886 F.3d at 1296.7 Under this analysis, Silva

would not be removable under 8 U.S.C. § 1227(a)(2)(A)(ii)

because he was not convicted “of two or more crimes

involving moral turpitude.”

D

We are not, however, writing on a clean slate. Before

Avery was decided, we held that a conviction under section

484(a) for petty theft qualified as a crime involving moral

turpitude. See United States v. Esparza-Ponce 193 F.3d

1133, 1136 (9th Cir. 1999). We reached this conclusion

without delving into the question whether the intent

requirement in section 484(a) criminalizedmore conduct than

the BIA’s definition of the intent requirement for a theft

7 The outcome may be different today given that the BIA’s current

interpretation of a theft offense involving moral turpitude does not require

an intent to effect a literally permanent taking. See Matter of DiazLizarraga, 26 I. & N. Dec. at 852–53 (holding that “a theft offense is a

crime involving moral turpitude if it involves an intent to deprive the

owner of his property either permanently or under circumstances where

the owner’s property rights are substantially eroded,” which does not

require “a literally permanent taking” (emphasis omitted)).
SILVA V. BARR 17

offense involving moral turpitude. After Avery ruled that

section 484(a) does not require an intent to effect a literally

permanent deprivation, 27 Cal. 4th at 55, we continued to rely

on Esparza-Ponce, see Castillo-Cruz, 581 F.3d at 1159;

Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir.

2008) (per curiam). In Flores Juarez, decided six years after

Avery, the petitioner was “convicted of three separate petty

theft offenses in violation of California Penal Code §§ 484

and 488.” 530 F.3d at 1022. Without mentioning Avery, we

relied on Esparza-Ponce to conclude that “[p]etty theft is a

crime involving moral turpitude.” Id. And in Castillo-Cruz,

decided seven years after Avery, we stated that petty theft in

violation of section 484(a) was a crime involving moral

turpitude because it required “the specific intent to deprive

the victim of his property permanently.” 581 F.3d at 1160

(citation omitted).

Garcia-Martinez puts our conclusions in Esparza-Ponce,

Flores Juarez, and Castillo-Cruz in question, because these

opinions failed to analyze the potential distinction between

the intent requirement in section 484(a) and the BIA’s

articulation of the intent required for a theft offense involving

moral turpitude before Matter of Diaz Lizarraga. But we are

nevertheless bound by our precedent. “[T]he first panel to

consider an issue sets the law not only for all the inferior

courts in the circuit, but also future panels of the court of

appeals.” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.

2001). In our circuit, a three-judge panel must apply binding

precedent even when it is clearly wrong because (for

example) it failed to recognize an intervening change in the

law. See United States v. Contreras, 593 F.3d 1135, 1136

(9th Cir. 2010) (en banc) (holding that a three-judge panel

lacked authority to overrule decisions that failed to recognize

an intervening amendment to a sentencing guideline). Only
18 SILVA V. BARR

an en banc court has the power to fix these errors. See Sierra

Forest Legacy v. Sherman, 646 F.3d 1161, 1189 (9th Cir.

2011). A three-judge panel can reconsider the law of the

circuit only when “the relevant court of last resort” has

“undercut the theory or reasoning underlying the prior circuit

precedent in such a way that the cases are clearly

irreconcilable,” Miller v. Gammie, 335 F.3d 889, 900 (9th

Cir.2003) (en banc), or when a three-judge panel must follow

an agency construction entitled to Chevron deference rather

than a prior judicial interpretation of an ambiguous statute,

see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 982 (2005).

Because Avery predates Castillo-Cruz and Flores Juarez,

there is no “intervening decision on controlling state law by

a state court of last resort,” Gammie, 335 F.3d at 893, and we

are “bound to reach the same result” as our precedent,

Massanari, 266 F.3d at 1170. We therefore conclude that

Silva’s three separate violations of section 484(a) constitute

crimes involving moral turpitude. See, e.g., Castillo-Cruz,

581 F.3d at 1159. Accordingly, the BIA did not err in relying

on our binding precedent to conclude that Silva was

removable on the ground that he was “convicted of two or

more crimes involving moral turpitude.” 8 U.S.C.

§ 1227(a)(2)(A)(ii).8

8 Silva’s argument that the phrase “crimes involving moral turpitude”

is unconstitutionally vague is foreclosed by our recent opinion in

Martinez-de Ryan v. Whitaker, 909 F.3d 247, 251–52 (9th Cir. 2018), cert.

denied sub nom. Martinez-de Ryan v. Barr, 140 S. Ct. 134 (2019). 

Although Silva purports to raise a new argument regarding why the phrase

is void for vagueness, we are bound by prior circuit law even when a new

litigant raises arguments that are “characterized differently or more

persuasively.” United States v. Ramos-Medina, 706 F.3d 932, 939 (9th

Cir. 2013).
SILVA V. BARR 19

III

We next turn to the BIA’s denial of Silva’s motion to

reopen. Although Silva did not seek relief from removal at

his initial hearing, an alien may move to reopen proceedings

for the purpose of submitting new applications for relief. See

8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(1). We review

the denial of a motion to reopen for an abuse of discretion and

reverse only if the BIA’s decision was “arbitrary, irrational,

or contrary to law.” Valeriano v. Gonzales, 474 F.3d 669,

672 (9th Cir. 2007) (citation omitted).

Where, as here, the motion to reopen is based on changed

circumstances in the country to which removal has been

ordered, the movant must: (1) produce evidence that

conditions have changed in the country of removal,

(2) demonstrate that the evidence is material, (3) show that

the evidence was not available and would not have been

discovered or presented at the previous hearing, and

(4) demonstrate that the new evidence, when considered

together with the evidence presented at the original hearing,

would establish prima facie eligibility for the relief sought. 

See 8 U.S.C. 1229a(c)(7)(ii); 8 C.F.R. § 1003.2(c)(1);

Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017).9

9 Section 1229a(c)(7) provides, “There is no time limit on the filing

of a motion to reopen if the basis of the motion is to apply for relief under

sections 1158 [asylum] or 1231(b)(3) [withholding of removal] of this title

and is based on changed country conditions arising in the country of

nationality or the country to which removal has been ordered, if such

evidence is material and was not available and would not have been

discovered or presented at the previous proceeding.” 8 U.S.C.

§ 1229a(c)(7)(ii) (footnote omitted). The regulations governing such
20 SILVA V. BARR

Here, the BIA denied the motion to reopen on the ground

that Silva had not established the fourth prong: that the new

evidence would establish a prima facie case for the relief

sought. Therefore, our review is limited to that ground. See

Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000). To

establish a prima facie case, the movant must adduce

evidence that, along with the facts already in the record, “will

support the desired finding if evidence to the contrary is

disregarded.” Maroufi v. INS, 772 F.2d 597, 599 (9th Cir.

1985); see also Sakhavat v. INS, 796 F.2d 1201, 1204 (9th

Cir. 1986) (stating that, at the motion-to-reopen stage, the

BIAmust determine whether the movant’s affidavits “on their

face cumulatively establish a clear probability” that he is

entitled to the relief sought). The BIA may not make

credibility determinations on motions to reopen, Yang v.

Lynch, 822 F.3d 504, 509 (9th Cir. 2016), and “must accept

as true the facts asserted by the [movant], unless they are

‘inherently unbelievable,’” Agonafer, 859 F.3d at 1203

(quoting Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)).10

Nevertheless, “[c]ourts have recognized that a prima facie

case of the clear probability of persecution cannot be

established from speculative conclusions or vague

assertions.” Maroufi, 772 F.2d at 599; see also Nagoulko v.

INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (holding that an

alien’s fear of a hostile political party regaining power in her

country is “too speculative to be credited as a basis for fear of

motions appear at 8 C.F.R. § 1003.2. We have held that these regulations

also apply to claims under the Convention Against Torture. Go v. Holder,

744 F.3d 604, 609 (9th Cir. 2014).

10 “[W]here some of the evidence is developed at a hearing, the [BIA]

is of course free to interpret that evidence free from inferences in favor of

the moving party.” Limsico, 951 F.2d at 213 (citation omitted).
SILVA V. BARR 21

future persecution” absent “specific evidence” suggesting that

such an event will occur). Therefore, “[a]ffidavits submitted

in support of motions to reopen deportation proceedings must

contain specific facts in order to carry the burden of

establishing a clear probability of persecution.” Maroufi,

772 F.2d at 600.

We turn to the question whether Silva established a prima

facie case for asylum or withholding of removal. Silva does

not contend that he suffered past persecution in the

Philippines, so to qualify for asylum he must demonstrate “a

well-founded fear of future persecution” in the Philippines,

8 C.F.R. § 1208.13(b), “on account of race, religion,

nationality, membership in a particular social group, or

political opinion,” 8 U.S.C. § 1101(a)(42). In the absence of

past persecution, an applicant must prove both a subjective

fear offuture persecution, 8 C.F.R. § 1208.13(b)(2)(i)(A), and

an objectively “reasonable possibility” of future persecution,

8 C.F.R. § 1208.13(b)(2)(i)(B). “The objective component

requires a showing, by credible, direct, and specific evidence

in the record, of facts that would support a reasonable fear of

persecution.” Limsico, 951 F.2d at 212 (citation omitted). 

“Speculation on what could occur is not enough to establish

a reasonable fear.” Bartolome v. Sessions, 904 F.3d 803, 814

(9th Cir. 2018).

Section 1231(b)(3) provides for withholding of removal. 

8 U.S.C. § 1231(b)(3). To qualify for this form of relief, the

applicant must demonstrate that it is “more likely than not

that he or she would be persecuted on account of race,

religion, nationality, membership in a particular social group,

or political opinion upon removal to [the country in

question].” 8 C.F.R. § 1208.16(b)(2). The “more likely than

not” standard for withholding of removal is “more stringent”
22 SILVA V. BARR

than the “reasonable possibility” standard for asylum, and

therefore an applicant who is unable to show a “reasonable

possibility” of future persecution “necessarily fails to satisfy

the more stringent standard for withholding of removal.” 

Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004);

accord Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th

Cir. 2019).

Here, the BIA did not abuse its discretion in concluding

that Silva failed to establish a prima facie case for asylum or

withholding of removal. In his declaration, Silva speculated

that someone in the Philippines could report his past drug use

to the government, or that he might succumb to the

temptation to begin using drugs again. Silva did not,

however, submit any “specific evidence” that such events

might occur, and these possibilities are “too speculative to be

credited as a basis for fear of future persecution.” Nagoulko,

333 F.3d at 1018. Accordingly, the BIA did not abuse its

discretion in concluding that Silva failed to establish a prima

facie case for asylum. Therefore, he also “necessarily fail[ed]

to satisfy the more stringent standard for withholding of

removal.” Mansour, 390 F.3d at 673.

We next turn to the question whether Silva established a

prima facie case for protection under the Convention Against

Torture (CAT). To qualify for CAT protection, the applicant

must “establish that it is more likely than not that he or she

would be tortured if removed to [the country in question].” 

8 C.F.R. § 1208.16(c)(2); accord Duran-Rodriguez, 918 F.3d

at 1029.

It was neither arbitrary nor irrational for the BIA to

conclude that Silva’s speculations in his motion to reopen and

declaration were insufficient to show “that it is more likely
SILVA V. BARR 23

than not that he would be tortured if removed to [the

Philippines].” Duran-Rodriguez, 918 F.3d at 1029 (citing

8 C.F.R. § 1208.16(c)(2)); see Delgado-Ortiz v. Holder,

600 F.3d 1148, 1152 (9th Cir. 2010) (holding that generalized

evidence of crime in Mexico was insufficient to establish

prima facie eligibility for CAT protection). Therefore, the

BIA did not abuse its discretion in concluding that Silva

failed to establish a prima facie case for CAT protection.

PETITIONS DENIED.

BERZON, Circuit Judge, concurring:

I concur in the majority opinion in full. I write separately

to reiterate yet again my view that the phrase “crime

involving moral turpitude” is unconstitutionally vague. See

Barbosa v. Barr, 926 F.3d 1053, 1060–61 (9th Cir. 2019)

(Berzon, J., concurring); Jauregui-Cardenas v. Barr, 946

F.3d 1116, 1121 (9th Cir. 2020) (Berzon, J., concurring). The

majority opinion provides yet another example of our “failed

enterprise” to consistently determine whether a crime

involves moral turpitude when there is no “coherent criteria”

as to what that phrase encompasses. Islas-Veloz v. Whitaker,

914 F.3d 1249, 1258–61 (9th Cir. 2019) (Fletcher, J.,

concurring). As “persistent efforts” have failed “to establish

a standard” of what a “crime involving moral turpitude” is, it

is time to revisit whether this phrase is unconstitutionally

vague. See Johnson v. United States, —U.S.—, 135 S. Ct.

2551, 2558 (2015) (internal citation and quotation marks

omitted).