JORGE ANDRES REYES AFANADOR, AKA Jorge Alberto Reyes v. MERRICK B. GARLAND, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ANDRES REYES AFANADOR,
AKA Jorge Alberto Reyes,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-70127
Agency No.
A088-881-375
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 11, 2020
San Francisco, California
Filed August 27, 2021
Before: William A. Fletcher, Sandra S. Ikuta, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Ikuta;
Dissent by Judge VanDyke

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REYES AFANADOR V. GARLAND 2
SUMMARY*
Immigration
Granting Jose Andres Reyes Afanador’s petition for
review of a decision of the Board of Immigration Appeals,
and remanding, the panel held the BIA erred in applying
Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013),
retroactively to classify Reyes’s 2011 conviction for indecent
exposure under California Penal Code section 314.1 as a
crime involving moral turpitude.
After becoming a lawful permanent resident, Reyes was
convicted in 2011 and 2014 for violations of section 314.1.
Based on these convictions, an immigration judge and the
BIA found him removable under 8 U.S.C. § 1227(a)(2)(A)(ii)
as an alien convicted of two crimes involving moral turpitude
not arising out of a single scheme of criminal misconduct.
Reyes argued that Cortes Medina, in which the BIA held that
a violation of section 314.1 was a crime involving moral
turpitude, could not be applied retroactively to his 2011
conviction.
The panel explained that, before 2010, the BIA held in
nonprecedential decisions that section 314.1 convictions were
crimes involving moral turpitude. In Nunez v. Holder, 594
F.3d 1124 (9th Cir. 2010), however, this court held that a
section 314.1 conviction was not a crime involving moral
turpitude because the full range of prohibited conduct was not
morally turpitudinous. The BIA issued Cortes Medina in
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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REYES AFANADOR V. GARLAND 3
2013, holding that section 314.1 was a crime involving moral
turpitude, and that an indecent exposure offense is morally
turpitudinous when it involves an element of lewd intent. In
Betansos v. Barr, 928 F.3d 1133 (9th Cir. 2019), this court
held that the BIA’s interpretation of section 314.1 in Cortes
Medina was reasonable, and therefore superseded Nunez.
Betansos applied the five-factor balancing test from
Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir.
1982), to conclude that it was permissible to apply Cortes
Medina retroactively to the petitioner.
The panel concluded that applying Cortes Medina to
Reyes would have a retroactive effect, explaining that Cortes
Medina changed the legal consequences of Reyes’s 2011
conviction in two ways. First, Reyes became removable
under 8 U.S.C. § 1227(a)(2)(A)(i) after Cortes Medina
classified his section 314.1 offense as a crime involving
moral turpitude because his offense was punishable by a term
of at least 16 months and, under 8 U.S.C. § 1227(a)(2)(A)(i),
an alien convicted of a crime involving moral turpitude for
which a sentence of one year or longer may be imposed is
removable. Second, after Cortes Medina was decided,
Reyes’s 2011 conviction became a potential ground for
removal under § 1227(a)(2)(A)(ii) (an alien convicted of two
crimes involving moral turpitude).
Applying the Montgomery Ward factors, the panel
concluded that the retroactive effect here was impermissible.
The panel observed that the first factor (whether the case is
one of first impression) does not apply in immigration cases.
As to the second factor (whether the new rule represents an
abrupt departure from well established practice) the panel
explained that Betansos had already decided that Cortes
Medina abruptly departed from Nunez, and thus concluded
that factor favored Reyes. The panel also concluded that the

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REYES AFANADOR V. GARLAND 4
third factor (the extent of reliance) favored Reyes. Observing
that Reyes had not shown that he in fact relied on Nunez, the
panel explained there was a rebuttable presumption that he
relied on Nunez when he pleaded guilty in 2011, and the
government had not rebutted this presumption. As to the
fourth factor (the degree of burden) the panel concluded that
Cortes Medina significantly burdened Reyes by making his
2011 conviction a crime involving moral turpitude, which
carries unfavorable immigration consequences. The panel
concluded that the fifth factor (the statutory interest in
applying a new rule) tipped toward the government because
non-retroactivity impairs the uniformity of a statutory
scheme. Taking these factors together, the panel concluded
the retroactive effect here would be impermissible.
Accordingly, the panel concluded that Reyes’s 2011
conviction could not be deemed a crime involving moral
turpitude and therefore he was not removable under
§ 1227(a)(2)(A)(ii). The panel stated that, on remand, the
agency may consider additional evidence from the parties,
including evidence rebutting the presumption that Reyes
relied on Nunez in 2011.
Dissenting, Judge VanDyke wrote that the court was
presented yet again with a case study in how this court’s
abysmal and indefensible immigration precedents are the gifts
that keep on taking. Judge VanDyke wrote that his
colleagues in the majority felt cabined by a chain of errors
from the past, initiated when Judge Reinhardt pronounced in
Nunez that “lewdly … [e]xpos[ing] … private parts … in any
public place” is neither “base, vile, and depraved,” nor does
it “shock the conscience.” Nunez, 594 F.3d at 1130, 1138
(citation omitted). Judge VanDyke wrote that, after the BIA
rushed to correct this court’s grossly wrong precedent, the
Betansos decision somehow concluded that Cortes Medina

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REYES AFANADOR V. GARLAND 5
was a “complete surprise,” even though the BIA had reached
exactly that conclusion in case after case for well over a
decade. Due to the multiple crimes Reyes committed—the
key conviction occurring after Cortes Medina—Judge
VanDyke wrote he did not believe the court is forced to
extend the court’s past distortion of the “fluid boundaries” of
“vile” conduct.
Judge VanDyke concluded that the statement in
Betansos—that it would have been reasonable to rely on
Nunez between its issuance and that of Cortes Medina—was
dictum, and was obviously wrong because Cortes Medina
was not a “complete surprise.” Observing that Cortes Medina
was obviously an abrupt departure from Nunez, Judge
VanDyke wrote that that is not the test under Montgomery
Ward’s second factor; rather, that factor asks whether the BIA
departed from well established practice. But even assuming
the entire Betansos analysis is binding, Judge VanDyke
concluded the petitioner in this case could not have justifiably
relied on Nunez when it mattered—when he committed his
second offense triggering his removal. Thus, the second and
third Montgomery Ward factors weighed against Reyes, and
he would deny the petition.
COUNSEL
Saad Ahmad (argued), Fremont, California; Raul Ray, Law
Offices of Raul Ray, San Jose, California; for Petitioner.
Jonathan K. Ross (argued), Trial Attorney; Erica B. Miles,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.

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REYES AFANADOR V. GARLAND 6
OPINION
IKUTA, Circuit Judge:
Jorge Andres Reyes Afanador, a native of Colombia,
petitions for review of a ruling by the Board of Immigration
Appeals (BIA) that he was removable as an alien convicted
of two crimes involving moral turpitude under 8 U.S.C.
§ 1227(a)(2)(A)(ii). We hold that the BIA erred in applying
its decision in Matter of Cortes Medina, 26 I. & N. Dec. 79,
81 (BIA 2013), retroactively to classify Reyes’s 2011
conviction for indecent exposure as a crime involving moral
turpitude. Therefore, we grant the petition for review.
I
Reyes is a native of Colombia who entered the United
States on a visitor’s visa in 1989. Before adjusting his status
to lawful permanent resident, Reyes had numerous criminal
arrests and convictions, including two indecent exposure
convictions, one in 2007 under California Penal Code section
314.1 and the other in 2008 under California Penal Code
section 647(a).1 In 2009, Reyes married a United States
citizen and successfully adjusted his status through an
application that his wife filed on his behalf.
In 2011, Reyes was again charged with indecent exposure
under section 314.1 and pleaded no contest to a felony. He
1 California Penal Code section 314.1 provides, in pertinent part, that
“[e]very person who willfully and lewdly . . . [e]xposes his person, or the
private parts thereof, in any public place, or in any place where there are
present other persons to be offended or annoyed thereby” is guilty of a
crime.

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REYES AFANADOR V. GARLAND 7
was sentenced to eight months in jail and three years
probation for this offense. In 2014, he pleaded no contest to
an additional felony for violation of section 314.1, for which
he was sentenced to 16 months in prison and three years of
parole upon release. In 2015, the government initiated
removal proceedings. Relying on the 2011 and 2014
convictions, the government issued a notice to appear (NTA)
charging Reyes with being subject to removal from the
United States under 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien
convicted of two crimes involving moral turpitude not arising
out of a single scheme of criminal misconduct.2
At his July 2016 hearing before the immigration judge
(IJ), Reyes admitted the factual allegations in the NTA, but
challenged his removability on the ground that his
convictions under section 314.1 were not categorically crimes
involving moral turpitude. He also submitted applications for
relief from removal.3 Relying on a precedential BIA opinion
holding that a violation of section 314.1 was a crime
involving moral turpitude, see Cortes Medina, 26 I. & N.
Dec. at 81, the IJ concluded that Reyes was removable as
charged. The IJ also denied Reyes’s cancellation of removal
2 8 U.S.C. 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.
3 Reyes submitted applications for cancellation of removal, asylum,
withholding of removal, and protection under the Convention Against
Torture (CAT). He based these applications on his fear of returning to
Colombia because a drug cartel harassed his father in the 1980s.

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REYES AFANADOR V. GARLAND 8
application as a matter of discretion and denied his
applications for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT).
On appeal to the BIA, Reyes argued that the IJ erred by
ignoring a Ninth Circuit decision holding that an offense
under section 314.1 was not categorically a crime involving
moral turpitude, see Nunez v. Holder, 594 F.3d 1124, 1133
(9th Cir. 2010). The BIA rejected this argument on the
ground that its precedential opinion in Cortes Medina
superseded our decision in Nunez. See Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
982 (2005) (holding that federal courts must defer to certain
agency decisions even when they overrule prior judicial
opinions). The BIA rejected Reyes’s other claims. This
petition for review followed.
II
Reyes argues that Cortes Medina cannot be applied
retroactively to his 2011 conviction, and therefore the BIA
erred in treating that conviction as a crime involving moral
turpitude. If Reyes is correct, then only his 2014 conviction
is a crime involving moral turpitude; this means that Reyes
was not removable under section 1227(a)(2)(A)(ii), which
applies to an alien convicted of two or more crimes involving
moral turpitude.
We begin with the background principles for applying
new legal requirements retroactively. It has long been
established that legislation does not apply retroactively absent
a clear indication that Congress intended to make the statute
retroactive. Reynolds v. McArthur, 27 U.S. 417, 434 (1829).
This general rule is based on “deeply rooted” principles of

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REYES AFANADOR V. GARLAND 9
equity and due process. Landgraf v. USI Film Prods.,
511 U.S. 244, 265 (1994). “Elementary considerations of
fairness dictate that individuals should have an opportunity to
know what the law is and to conform their conduct
accordingly; settled expectations should not be lightly
disrupted.” Id.
It is not always clear whether new legislation has a
retroactive effect, however, and the Supreme Court has
acknowledged that “[a]ny test of retroactivity will leave room
for disagreement in hard cases.”4 Id. at 270. As a general
rule, legislation is deemed retroactive (and therefore
impermissible unless expressly sanctioned by Congress) if “it
changes the legal consequences of acts completed before its
effective date,” or if it “takes away or impairs vested rights
acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability.” Id. at 269
n.23 (cleaned up). In determining whether a statute attaches
new legal consequences to events completed before its
enactment, courts “should be informed and guided by familiar
considerations of fair notice, reasonable reliance, and settled
expectations.” INS v. St. Cyr, 533 U.S. 289, 321 (2001)
(cleaned up).
4 For instance, the Supreme Court has explained that a rule does not
have an impermissible retroactive effect “merely because it is applied in
a case arising from conduct antedating the statute’s enactment,” or
“merely because it draws upon antecedent facts for its operation.”
Landgraf, 511 U.S. at 269 & n.24. And “[e]ven uncontroversially
prospective statutes may unsettle expectations and impose burdens on past
conduct: a new property tax or zoning regulation may upset the reasonable
expectations that prompted those affected to acquire property; a new law
banning gambling harms the person who had begun to construct a casino
before the law’s enactment or spent his life learning to count cards.” Id.
at 269 n.24.

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REYES AFANADOR V. GARLAND 10
The Supreme Court has applied these principles in several
immigration cases. In St. Cyr, the Supreme Court considered
the retroactivity of new legislation which stripped the
government of discretion to waive deportation for aliens who
had committed certain crimes. Id. at 321–22. The Court held
this legislation was retroactive to the extent it applied to
aliens who had entered guilty pleas before the legislation was
enacted. Id. at 326. The Court reached a similar conclusion
in Vartelas v. Holder when it considered new legislation that
rendered lawful permanent residents convicted of certain
crimes inadmissible if they left the United States for a brief
period. 566 U.S. 257, 262–63 (2012). The Court held this
legislation had a congressionally unauthorized retroactive
effect to the extent it applied to lawful permanent residents
who had previously pleaded guilty to such crimes. Id. at 263,
275. In both cases, the new statutory provision changed the
legal consequences of plea agreements entered into before the
statute’s effective date.
By contrast to legislation, judicial decisions have been
governed by a “fundamental rule of retrospective operation”
for “near a thousand years.” Harper v. Va. Dep’t of Tax’n,
509 U.S. 86, 94 (1993) (cleaned up). Courts must apply
judicial decisions announcing new interpretations of criminal
procedural rules “retroactively to all cases, state or federal,
pending on direct review or not yet final.” Griffith v.
Kentucky, 479 U.S. 314, 328 (1987). Federal courts must
also retroactively apply new rules announced in civil cases,
except in narrow circumstances. Harper, 509 U.S. at 97–98.
Agency determinations may be legislative or judicial,
because agencies engage in both rulemaking and
adjudication. Agency determinations are judicial in nature
when an agency’s adjudicatory decisions apply preexisting

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REYES AFANADOR V. GARLAND 11
rules to new factual circumstances. De Niz Robles v. Lynch,
803 F.3d 1165, 1172 (10th Cir. 2015) (Gorsuch, J.). In these
circumstances, an agency’s determinations apply
retroactively, like other judicial decisions. See id.; see also
SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (Chenery II)
(“Every case of first impression has a retroactive effect,
whether the new principle is announced by a court or by an
administrative agency.”).
An agency’s determinations may also be legislative in
nature if Congress has delegated legislative authority to the
agency. An agency may exercise its legislative authority in
two different ways: it may proceed either through formal
notice-and-comment rulemaking, or it may proceed through
agency adjudication. Chenery II, 332 U.S. at 202; see also
Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th
Cir. 1982) (“It is well settled that the decision whether to
proceed by adjudication or rule-making lies in the first
instance within the [agency’s] discretion.” (cleaned up)).
When an agency engages in formal rulemaking, the rules
it promulgates are analogous to legislation and are construed
to apply only prospectively (unless Congress has expressly
authorized it to promulgate a retroactively applicable rule).
See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988); De Niz Robles, 803 F.3d at 1172 (“[A]bsent express
congressional approval, newly promulgated agency rules
should apply only prospectively because of their affinity to
legislation.”) (citing Bowen, 488 U.S. at 208).
An agency may also exercise its congressionally
delegated legislative authority through adjudicatory
proceedings, where “new administrative policy [is]
announced and implemented through adjudication.”

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REYES AFANADOR V. GARLAND 12
Montgomery Ward, 691 F.2d at 1328. When an agency issues
new rules of general applicability through adjudication, such
rules are analogous to legislation, because the agency’s
interpretation of a statute “is not a once-and-for-always
definition of what the statute means, but an act of
interpretation in light of its policymaking responsibilities that
may be reconsidered on a continuing basis.” Garfias-
Rodriguez v. Holder, 702 F.3d 504, 515–16 (9th Cir. 2012)
(en banc) (cleaned up). But while rules promulgated through
legislation or formal rulemaking generally apply
prospectively (unless Congress has sanctioned retroactive
application), adjudicatory rules may have a permissible
retroactive effect, even without authorization from Congress,
in some circumstances.5 See Chenery II, 332 U.S. at 203.
We determine whether a rule’s retroactive effect is
permissible by engaging in a case-by-case analysis to balance
“a regulated party’s interest in being able to rely on the terms
of a rule as it is written, against an agency’s interest in
retroactive application of an adjudicatory decision.”
Montgomery Ward, 691 F.2d at 1333.6 We have adopted the
following five-factor balancing test, which we apply on a
case-by-case basis:
5 Chenery II explains that rules made through agency adjudication
must be allowed to have a retroactive effect in certain situations because
administrative agencies face problems they “could not reasonably foresee”
or “problem[s] [that are] so specialized and varying in nature as to be
impossible of capture within the boundaries of a general rule.” 332 U.S.
at 202–03. “In those situations, the agency must retain power to deal with
the problems on a case-to-case basis if the administrative process is to be
effective.” Id. at 203.
6 “[A] change in law must have occurred before Montgomery Ward
is implicated.” Olivas-Motta v. Whitaker, 910 F.3d 1271, 1276 (9th Cir.
2018).

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REYES AFANADOR V. GARLAND 13
Among the considerations that enter into a
resolution of the problem are (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.
Id. (quoting Retail, Wholesale & Dep’t Store Union v. NLRB,
466 F.2d 380, 390 (D.C. Cir. 1972)).7
The first factor (whether a case is one of first impression)
does not apply in the immigration context. See Garfias-
Rodriguez, 702 F.3d at 520–21. In that context, the
government is the plaintiff and there is no concern “that a
party seeking to overturn an administrative rule” would not
get the benefit of its efforts. De Niz Robles, 803 F.3d at 1177
n.9.
The second factor considers whether the adjudicatory rule
“represents an abrupt departure from well established
practice,” Garfias-Rodrguez, 702 F.3d at 518 (quoting
Montgomery Ward, 691 F.2d at 1333), or is “an abrupt break
with well-settled policy,” id. (quoting ARA Servs., Inc. v.
7 If the agency’s adjudicatory rule does not have a retroactive effect,
the court need not apply the Montgomery Ward factors. See Singh v.
Napolitano, 649 F.3d 899, 901 n.1 (9th Cir. 2011) (per curiam).

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REYES AFANADOR V. GARLAND 14
NLRB, 71 F.3d 129, 135 (4th Cir. 1995)). Because the BIA
functions as a court of appellate review within a larger agency
framework, see 8 C.F.R. § 1003.1, it establishes policy only
through its precedential decisions, which are binding on third
parties. Marmolejo-Campos v. Holder, 558 F.3d 903, 909 n.9
(9th Cir. 2009) (en banc). The BIA’s unpublished decisions,
which do not bind the BIA or future parties, see id., do not
establish the practice or policy of the agency, see 8 C.F.R.
§ 1003.1(d)(1) (stating that the BIA, “through precedent
decisions, shall provide clear and uniform guidance to the
[agency], the immigration judges, and the general public on
the proper interpretation and administration of the Act and its
implementing regulations” (emphasis added)); cf. Indep. Ins.
Agents of Am., Inc. v. Ludwig, 997 F.2d 958, 962 (D.C. Cir.
1993) (holding that “in the real world of agency practice,
informal unpublished letters should not engender reliance”
(cleaned up)).
Next, the third factor (a party’s reliance interests) directs
“our attention to the question whether the petitioner can claim
reasonable reliance on some past rule or decision, a due
process concern always at the heart of retroactivity analysis.”
De Niz Robles, 803 F.3d at 1177 (assessing the Tenth
Circuit’s version of the Montgomery Ward factors, known as
the Stewart Capital factors). “The second and the third
factors are closely intertwined,” Garfias-Rodriguez, 702 F.3d
at 521, and therefore are analyzed together. “If a new rule
‘represents an abrupt departure from well established
practice,’ a party’s reliance on the prior rule is likely to be
reasonable, whereas if the rule ‘merely attempts to fill a void
in an unsettled area of law,’ reliance is less likely to be
reasonable.” Id. (quoting Retail, Wholesale & Dep’t Store
Union, 466 F.2d at 390–91).

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REYES AFANADOR V. GARLAND 15
The fourth and fifth factors balance the costs to the
regulated party against the benefits of allowing the agency to
give a retroactive effect to a new rule. De Niz Robles,
803 F.3d at 1177.
Whether an agency announces a new interpretation of an
ambiguous statute through formal rulemaking or through
adjudication, a court must defer to the agency’s decision so
long as it is reasonable. Chevron U.S.A. Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984); see also INS v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (holding that the
court should have applied Chevron deference to the BIA’s
“construction of the statute which it administers” in an
adjudicatory proceeding). This is true even if the agency’s
interpretation overrides a court’s prior judicial construction
of the statute. See Brand X, 545 U.S. at 982. And such a rule
may even apply retroactively, if the rule has a permissible
retroactive effect in a particular case. See Garfias-Rodriguez,
702 F.3d at 520.
III
We now consider whether Reyes’s 2011 conviction under
section 314.1 can be considered a crime involving moral
turpitude under the BIA’s decision in Cortes Medina.
A
The BIA deemed Reyes to be removable as an “alien who
at any time after admission is convicted of two or more
crimes involving moral turpitude.” 8 U.S.C.
§ 1227(a)(2)(A)(ii). The phrase “crime involving moral
turpitude” is inherently ambiguous, and neither we nor the
BIA have established any clear-cut criteria “for determining

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which crimes fall within that classification and which crimes
do not.” Nunez, 594 F.3d at 1130. Because the phrase
“crimes 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.” Ortega-Lopez v. Barr, 978 F.3d
680, 685 (9th Cir. 2020) (cleaned up). We have deferred
under Chevron to this offense-by-offense approach when
articulated by the BIA in a published opinion. See
Marmolejo-Campos, 558 F.3d at 910–11 (deference for
defining categories of crimes involving moral turpitude);
Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en banc)
(deference under Chevron).
The question whether a conviction under the statute at
issue in this case, section 314.1, is a conviction for a crime
involving moral turpitude has proven problematic. Before
2010, the BIA held in nonprecedential decisions that
convictions for indecent exposure under section 314.1 were
crimes involving moral turpitude. See Nunez, 594 F.3d
at 1133. In 2010, however, Nunez held that a conviction
under section 314.1 was not a crime involving moral
turpitude because the full range of conduct that section 314.1
prohibits is not morally turpitudinous. See id. Specifically,
we held that “[b]ecause nude dancers at bars and partially
exposed purveyors of ‘sexual’ insults have been convicted
under section 314.1, there is a ‘realistic probability, not a
theoretical possibility, that [California] would apply [the
indecent exposure] statute to conduct that falls outside the
generic definition of [moral turpitude].’” Id. at 1138 (quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

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But in 2013, the BIA once again held that section 314.1
was a crime involving moral turpitude, this time in a
precedential opinion. See Cortes Medina, 26 I. & N. Dec. at
81. The BIA held that an indecent exposure offense is a
crime involving moral turpitude when it involves an element
of lewd intent. Id. at 83. Applying this principle, the BIA
held that section 314.1 was a crime involving moral turpitude
because a finding of lewdness is necessary for a conviction
under the statute. Id. at 84. Further, and contrary to Nunez,
the BIA held that there was “no ‘realistic probability’ of a
conviction in California under [section 314.1] for nude
dancing or other conduct that does not involve moral
turpitude.” Id. at 86.
In Betansos v. Barr, we assumed that Cortes Medina
enunciated a new agency rule promulgated through
adjudication, and we reiterated the principle that “[u]nder
Brand X, we must defer to the BIA’s interpretation of [crime
involving moral turpitude] in Cortes Medina unless its
conclusion is unreasonable.” 928 F.3d 1133, 1141 (9th Cir.
2019). After determining that BIA did not misrepresent any
authorities, engaged in reasoned and thorough analysis, and
relied on published BIA authority, we held that the BIA’s
interpretation of section 314.1 in Cortes Medina was
reasonable, and therefore superseded Nunez. Id. at 1142.
Betansos next assumed that Cortes Medina had a
retroactive effect, and turned to the question whether it was
permissible to apply Cortes Medina retroactively to a
petitioner who incurred a conviction under section 314.1 in
2002. Id. at 1143, 1145. To answer this question, Betansos
applied the Montgomery Ward factors pertinent to
immigration decisions to the petitioner’s case. See id.
at 1143; see also Garfias-Rodriguez, 702 F.3d at 520 (citing

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REYES AFANADOR V. GARLAND 18
Montgomery Ward, 691 F.2d at 1334). Given our rule that
the second and third Montgomery Ward factors are “closely
intertwined,” Betansos, 928 F.3d at 1143 (quoting Garfias-
Rodriguez, 702 F.3d at 521), we analyzed them together. We
held that the second factor favored the petitioner because
Cortes Medina represented an abrupt departure from Nunez,
“the first precedential opinion on the issue.” Id. at 1143–44.
Turning to the third factor (a party’s reliance interest), we
held that the petitioner could not take advantage of the rule
that “reliance is presumed if the former, favorable rule was in
place at the time the petitioner pleaded guilty or was
convicted,” because the petitioner pleaded guilty before
Nunez had been decided. Id. at 1144–45. Without a
presumption of reliance, we considered whether the petitioner
had nevertheless relied on Nunez by expending fees, making
strategic decisions, or choosing not to apply for other forms
of relief while Nunez was operative. Id. at 1145. We
concluded that the petitioner failed “to identify a specific
event or action that he took (or failed to take) in the past in
reliance on Nunez that now carries new consequences or
burdens under Cortes Medina,” and therefore the third factor
weighed against the petitioner. Id.
While the fourth factor weighed in the petitioner’s favor
because deportation creates a substantial burden, the fifth
factor tipped toward the government based on the need for
uniformity in immigration law. Id. After weighing these
factors in light of each other, we held that it was permissible
to apply Cortes Medina retroactively to the petitioner in that
case. Id. Given that the petitioner’s section 314.1 conviction
in 2002 constituted a crime involving moral turpitude under
Cortes Medina, we denied the petition for review. Id. at
1145–46.

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REYES AFANADOR V. GARLAND 19
B
We now turn to the question whether Cortes Medina’s
interpretation of “crime involving moral turpitude” as
including convictions under section 314.1 has an
impermissible retroactive effect on Reyes’s 2011 conviction.8
1
We first consider whether applying Cortes Medina to
Reyes’s guilty plea in 2011 would have any retroactive effect
at all. Both the government and the dissent argue that it
would not. In their view, after Cortes Medina was decided in
2013, Reyes was on notice that if he incurred another section
314.1 conviction, he would be deemed to have committed
two crimes involving moral turpitude. Dissent at 38–39.
Therefore, they reason, Reyes cannot identify any act he took
in reliance on Nunez that now creates a new burden or
disability under Cortes Medina. Dissent at 38–39.
Accordingly, the government and the dissent claim that
Cortes Medina is not retroactive as to Reyes.
We disagree, because this argument is contrary to the
Supreme Court’s definition of retroactivity. Landgraf made
clear that a law is retroactive “if it changes the legal
consequences of acts completed before its effective date,”
gives “a quality or effect to acts or conduct which they did
not have or did not contemplate when they were performed,”
8 Reyes does not argue that his 2014 conviction is not a crime
involving moral turpitude. Nor could he, because Cortes Medina was
decided in 2013, and Reyes could no longer reasonably rely on Nunez.
See Garfias-Rodriguez, 702 F.3d at 522.

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REYES AFANADOR V. GARLAND 20
or “attaches a new disability” to prior conduct. 511 U.S.
at 269–70 & n.23 (cleaned up).
In this case, Cortes Medina changed the legal
consequences of Reyes’s 2011 conviction under section 314.1
in two ways. First, as a result of the interaction of California
criminal law and federal immigration law, Reyes became
removable under 8 U.S.C. § 1227(a)(2)(A)(i) after Cortes
Medina classified his section 314.1 offense as a crime
involving moral turpitude. Specifically, Reyes had already
been convicted of a violation of section 314.1 before 2011.
Under California law, a second offense under section 314.1
is a felony punishable by a prison term of at least 16 months,
see Cal. Penal Code §§ 314.1, 1170(h)(1). Under
immigration law, an alien who is convicted of a crime
involving moral turpitude for which a sentence of one year or
longer may be imposed, is removable. 8 U.S.C.
§ 1227(a)(2)(A)(i). Such an alien is also ineligible for
cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C).
Therefore, Cortes Medina attached new legal consequences
to Reyes’s 2011 conviction of a section 314.1 offense.
Second, after Cortes Medina was decided, Reyes’s 2011
conviction of a section 314.1 offense became a potential
ground for removal under § 1227(a)(2)(A)(ii) (an alien
convicted of two crimes involving moral turpitude).
Although the new legal consequences of pleading guilty to a
crime involving moral turpitude did not affect Reyes until he
pleaded to a further violation in 2014, it is often the case that
the burden imposed by a retroactive rule becomes apparent
only after a party engages in additional conduct. In Vartelas,
for instance, the new legislation which reclassified certain
offenses as crimes involving moral turpitude did not affect
the lawful permanent aliens before the court until they made

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REYES AFANADOR V. GARLAND 21
a brief departure from the United States. 566 U.S. at 274–75;
see also Camins v. Gonzales, 500 F.3d 872, 884–85 (9th Cir.
2007) (same). Because Cortes Medina “attache[d] a new
disability” to Reyes’s guilty plea in 2011, it has a retroactive
effect regardless whether Reyes realized the consequences
immediately. See Landgraf, 511 U.S. at 269 n.23.
2
Although the BIA’s adjudicatory rule in Cortes Medina
has a retroactive effect on Reyes’s 2011 conviction, it is not
necessarily an impermissible retroactive effect that is “fatal to
its validity.” See Chenery II, 332 U.S. at 203. We must still
determine whether it is permissible to apply Cortes Medina
retroactively to Reyes. We do so by applying the
Montgomery Ward factors to weigh the burdens and benefits
of retroactivity in this case. In conducting this analysis, we
are guided by Betansos.9
9 The dissent argues that Cortes Medina does not have an
impermissible retroactive effect because it is like a recidivist statute,
which can permissibly increase the consequences of a decision to reoffend
in the future. Dissent at 41–42 (quoting Rummel v. Estelle, 445 U.S. 263,
278 (1980)). But the cases analyzing recidivist statutes are not relevant
here. Because Congress enacts recidivist statutes in order to impose
enhanced penalties on defendants based on their criminal history,
Congress necessarily authorizes the retroactive effect of such statutes. See
Landgraf, 511 U.S. at 280 (holding that a statute may apply retroactively
when “clear congressional intent favor[s] such a result”). Because the
“presumption against retroactive legislation,” id. at 265, does not apply to
recidivist statutes, challenges to recidivist statutes necessarily focus on
“contentions that [the statute] violated ‘constitutional strictures dealing
with double jeopardy, ex post facto laws, cruel and unusual punishment,
due process, equal protection, and privileges and immunities’” rather than
on the question whether the statute had a retroactive effect not authorized
by Congress, Rummel, 445 U.S. at 268 (quoting Spencer v. Texas,

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REYES AFANADOR V. GARLAND 22
As indicated in Betansos, the first factor (whether the case
is one of first impression) does not apply in the immigration
context.
Moving to the second factor, “whether the new rule
represents an abrupt departure from well established
practice,” Betansos already decided that Cortes Medina
abruptly departed from Nunez, and so the second factor favors
Reyes. See Betansos, 928 F.3d at 1143–44.
The third factor, the extent to which Reyes relied on
Nunez, also favors Reyes. Although the reliance analysis “is
highly fact dependent and conducted on a case-by-case
basis,” id. at 1146 n.6, the Supreme Court has indicated that
“as a general matter, alien defendants considering whether to
enter into a plea agreement are acutely aware of the
immigration consequences of their convictions,” St. Cyr,
533 U.S. at 322; see also Garcia-Martinez v. Sessions,
886 F.3d 1291, 1295 (9th Cir. 2018) (relying on this
presumption in applying the Montgomery Ward factors).
Therefore, although Reyes “has not shown that he in fact
relied on Nunez,” see Betansos, 928 F.3d at 1145 (emphasis
added), there is a rebuttable presumption that Reyes knew
about and relied on Nunez when he pleaded guilty to a section
314.1 offense in 2011. The government has not rebutted this
presumption.10
385 U.S. 554, 560 (1967)). By contrast, the retroactive effect of a rule
made through agency adjudication is impermissible unless it passes muster
under Montgomery Ward.
10 The dissent (but not the government) argues that the presumption
that Reyes relied on Nunez is rebutted because unpublished BIA decisions
issued before Nunez held that convictions under section 314.1 were crimes
involving moral turpitude. Dissent at 33, 36 n.4. This is incorrect,

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REYES AFANADOR V. GARLAND 23
In applying the fourth and the fifth factors (the degree of
burden on Reyes and the statutory interest in applying a new
rule), we are again guided by Betansos. See id. at 1145–46.
Cortes Medina significantly burdens Reyes because it would
make his 2011 conviction a crime involving moral turpitude,
which carries unfavorable immigration consequences. See id.
at 1145. As in Betansos, the fifth factor tips toward the
government because “non-retroactivity impairs the uniformity
of a statutory scheme, and the importance of uniformity in
immigration law is well established.”11 See id. (quoting
Garfias-Rodriguez, 702 F.3d at 523).
Taking these factors together, the second, third, and
fourth factors all weigh against applying Cortes Medina to
Reyes’s 2011 conviction, and the fifth factor, which weighs
in favor of retroactivity, is not dispositive. Because imposing
new legal consequences on Reyes’s decision to plead guilty
to a section 314.1 offense would conflict with principles of
“fair notice, reasonable reliance and settled expectations,”
St. Cyr, 533 U.S. at 323 (quoting Landgraf, 511 U.S. at 270),
because we have ruled that aliens are entitled to rely on our published
decisions even when earlier BIA opinions “should have enabled
noncitizens . . . to predict” that our precedent “would not survive.”
Acosta-Olivarria v. Lynch, 799 F.3d 1271, 1276 (9th Cir. 2015). Our rule
on this point is equally applicable when the earlier BIA opinions are
unpublished, and therefore do not establish binding policies or practices,
see 8 C.F.R. § 1003.1(d)(1) (providing that the BIA issues guidance,
policies, and practices “through precedent decisions”). Because aliens
within the Ninth Circuit can “rely on our opinions in making decisions,”
Acosta-Olivarria, 799 F.3d at 1276, despite the existence of prior BIA
opinions, Reyes was entitled to rely on Nunez before the BIA issued its
precedential decision in Cortes Medina.
11 The government has not attempted to demonstrate that uniformity
in this context has some special importance or weight.

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REYES AFANADOR V. GARLAND 24
and the government has not shown any significant
countervailing concerns beyond the general interest in
uniformity in the statutory scheme, we conclude that it would
be impermissible to apply Cortes Medina to Reyes’s 2011
conviction.
The dissent’s central reason for claiming that Cortes
Medina is not impermissibly retroactive amounts to little
more than a disagreement with Betansos. First, the dissent
argues, we should ignore Betansos’s conclusion on the
second Montgomery Ward factor (that Cortes Medina
abruptly departed from Nunez) because the third factor
(reliance) was controlling in Betansos, and therefore the
second factor was irrelevant to the facts of the case and
“obviously dictum.” Dissent at 31–32. This argument
evinces a misunderstanding of the Montgomery Ward factors.
In determining whether a new rule has an impermissible
retroactive effect, we must engage in a balancing test that
weighs all factors together, with the second and third factors
“closely intertwined,” and no one factor being dispositive.
See Garfias-Rodriguez, 702 F.3d at 523. Because no single
Montgomery Ward factor is controlling, Betansos’s analysis
of the second factor was “an issue germane to the eventual
resolution of the case” that was resolved “after reasoned
consideration” and is therefore not dicta. See Miranda B. v.
Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) (per curiam)
(quoting United States v. Johnson, 256 F.3d 895, 914 (9th
Cir. 2001) (en banc)).12 Accordingly, “we are bound by our
12 Moreover, the dissent errs in asserting that Betansos did not have
to address the second factor (whether Cortes Medina was an abrupt
departure from Nunez) for the petitioner in that case. Dissent at 39 n.6;
see also id. at 31–32. Although the petitioner in Betansos was convicted
before Nunez was decided, which eliminates the presumption of reliance

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REYES AFANADOR V. GARLAND 25
precedent.” Hammad v. Holder, 603 F.3d 536, 544 n.9 (9th
Cir. 2010) (citing Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir. 2003) (en banc)).
Second, the dissent contends that the third factor
(reliance) does not favor Reyes because the state of the law
in 2011 when Reyes pleaded guilty is irrelevant; rather, the
dissent argues, all that matters is the state of the law in 2014
when Reyes was subject to the conviction that triggered
Reyes’s eligibility for removal. Dissent at 42–43. This view
is erroneous, because the focus of the retroactivity analysis is
on whether Cortes Medina changed the legal consequences of
Reyes’s 2011 conviction, not on how it affected Reyes’s later
actions.
We conclude that the BIA improperly applied Cortes
Medina to Reyes’s 2011 conviction under section 314.1, and
therefore that conviction may not be deemed a crime
involving moral turpitude. Because Reyes has only one
conviction for a crime involving moral turpitude, and the
government sought to remove him for having two convictions
for crimes involving moral turpitude, § 1227(a)(2)(A)(ii), we
grant the petition for review on this ground. On remand, the
agency may consider additional evidence from the parties,
that exists when “the former, favorable rule was in place at the time the
petitioner pleaded guilty or was convicted,” Betansos, 928 F.3d at 1144,
the petitioner argued that he relied on Nunez by citing its determination
that section 314.1 is not a crime involving moral turpitude during his legal
proceedings, id. at 1145. Betansos rejected the petitioner’s argument as
not being “the type of specific reliance interest we have generally held
sufficient,” but indicated that petitioner could have demonstrated reliance
by “identify[ing] a specific event or action that he took (or failed to take)
in the past in reliance on Nunez that now carries new consequences or
burdens under Cortes Medina.” Id.

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REYES AFANADOR V. GARLAND 26
including evidence rebutting the presumption that Reyes
relied on Nunez when he pleaded guilty under section 314.1
in 2011.13
PETITION GRANTED.
VANDYKE, Circuit Judge, dissenting:
Yet again we are presented with a case study in how the
Ninth Circuit’s abysmal and indefensible immigration
precedents are the gifts that keep on taking—even where, as
here, my colleagues in the majority are simply trying to
faithfully apply our faithless precedent. My colleagues feel
cabined by a chain of errors from our past, initiated when
Judge Reinhardt disdainfully dismissed California jury
verdicts and the BIA, pronouncing that, in his view, “lewdly
… [e]xpos[ing] … private parts … in any public place” is
neither “base, vile, and depraved,” nor does it “shock the
conscience.” Nunez v. Holder, 594 F.3d 1124, 1130, 1138
(9th Cir. 2010) (citation omitted). After the BIA rushed to
correct our grossly wrong precedent, see Matter of Cortes
Medina, 26 I. & N. Dec. 79, 83 (BIA 2013), we begrudgingly
acknowledged that the BIA was right after all, and that “lewd
intent” in “willful exposure” to unwilling victims indeed
constitutes a crime involving moral turpitude (CIMT). See
Betansos v. Barr, 928 F.3d 1133, 1142 (9th Cir. 2019). But
like a politician who can’t even manage a good mea culpa,
our Betansos decision somehow concluded that the BIA’s
13 Because we hold the BIA erred in ruling that Reyes was removable
under 8 U.S.C. § 1227(a)(2)(A)(ii), we do not address Reyes’s additional
claims that the BIA erred in denying him relief from removal.

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REYES AFANADOR V. GARLAND 27
Cortes Medina decision was a “complete surprise,” even
though the BIA had reached exactly that conclusion in case
after case for well over a decade by that point—including in
the Nunez decision reversed by Judge Reinhardt. Id. at 1144.
One wonders how our court can be so bad at immigration
law.
Presented with this mess, the majority apparently believes
it must hold its nose and propagate the errors of Nunez and
Betansos due to the timing of one of the petitioner’s crimes
in this case. Jorge Reyes Afanador committed several sexual
assaults and received multiple convictions for indecent
exposure. Congress created an obligation to deport those who
commit multiple CIMTs, 8 U.S.C. § 1227(a)(2)(A)(ii), and
Cortes Medina and Betansos authoritatively hold that
convictions such as Reyes’s are CIMTs. Reyes seems clearly
deportable, but must we now nevertheless wring our hands
because our court incorrectly second-guessed the BIA in
Nunez, and the first of Reyes’s two crimes occurred in the
interstitial period between Nunez’s publication in 2010 and
the BIA’s correction of that error in Cortes Medina in 2013?
I don’t think so. Due to the multiple crimes Reyes
committed—the key conviction occurring after Cortes
Medina was decided—I don’t believe we are forced to extend
in this case our past distortion of the “fluid boundaries” of
“vile” conduct constituting a CIMT. Nunez, 594 F.3d at
1132. We should have denied Reyes’s petition.
1. The Errors of Nunez
The collateral consequences of our reprehensible Nunez
decision reverberate through the majority opinion. The
petitioner in Nunez had convictions for petty theft (a CIMT)
and indecent exposure under California Penal Code § 314.1.

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REYES AFANADOR V. GARLAND 28
Nunez, 594 F.3d at 1128–29. He argued before our court that
the BIA erred in concluding that his indecent exposure
conviction was also categorically a CIMT. Id. at 1129. After
acknowledging that “[m]orality is not a concept that courts
can define by judicial decrees,” id. at 1127, the Nunez
majority proceeded to do exactly that. It concluded the
conduct criminalized by section 314.1 was not categorically
a CIMT because it simply “encompass[ed] mere acts of
provocation, bad taste, and failed humor.” Id. at 1138. The
Nunez majority determined that the unpublished BIA opinion
under review improperly categorized section 314.1
convictions as crimes involving moral turpitude because, in
the majority’s view, section 314.1 clearly encompassed non-
criminal conduct and could realistically apply to such
conduct. Id.
In reaching this conclusion, the Nunez majority
minimized the “turpitudinous” nature of a section 314.1
crime, allowing that while “California’s indecent exposure
statute criminalizes a range of conduct that offends the
sensibilities of many, and perhaps most, people,” id. at 1133,
the panel theorized that perhaps the victims of intentional
lewd exposure of a defendant’s private parts were only “in
theory … offended by the conduct, even if, in actuality, they
[were] not.” Id. at 1134. Citing nude dancing, a man who “in
a fit of ‘road rage’ exposed his penis and yelled” a vulgar
remark at a female driver, and a boy who intentionally
engaged the attention of his “two female classmates” and
exposed himself, id. at 1137, the majority declared such
behavior “relatively harmless.” Id. at 1138. Discounting
section 314.1’s requirement of lewd intent—found satisfied
by a jury in the road rage case and the state court of appeals
in the classroom exposure case—the Nunez majority
determined these examples were simply instances of

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REYES AFANADOR V. GARLAND 29
“transitory nudity” and included only “brief reference[s] to
sex.” Id. Ultimately, the majority concluded such acts of
exposure with sexual intent to unwilling victims were “not
‘base, vile, and depraved,’ nor do they shock the conscience,”
and were thus not CIMTs. Id.1
The court in Nunez reversed the BIA by a bare two-judge
majority. The dissent argued that the judiciary’s perception
of what should be defined as a “tasteless prank” rather than
sexual assault does not, in and of itself, change the law or the
facts. Id. at 1139 (Bybee, J., dissenting). The dissent
observed first that the nude dancing case cited by the majority
as evidence for “a realistic probability … that [California]
would apply its statute to conduct” falling outside of the
definition of a CIMT was both “expressly disapproved” by
the California Supreme Court and had “not been cited” since
1982. Id. (citation omitted). As to the road rage and
classroom exposure cases relied on by the majority, the
dissent derided the majority’s “collateral attack on these
convictions” as “wholly inappropriate … and, at best,
revisionist history.” Id. In the road rage case, the California
Court of Appeal determined that the defendant’s exposure
“for the purpose of sexually insulting … the other person”
demonstrated sufficient lewd intent to violate section 314.1.
Id. at 1147 (citation omitted). In the classroom case, the
California Court of Appeal expressly found “facts suggesting
1 Nunez reflects a teachable moment for the judiciary: judges should
be more circumspect in establishing themselves as the arbiters of sexual
morality in society. See Nunez, 594 F.3d at 1133, 1138 (opinion of
Reinhardt, J.) (opining that “society is past the point where … a brief
reference to sex necessarily transforms an otherwise de minimus
provocation into a morally turpitudinous offense,” particularly for “mere
acts of provocation, bad taste, and failed humor” that do not, in the judge’s
view, “shock the conscience”).

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REYES AFANADOR V. GARLAND 30
lewd intent” because the student who exposed himself took
“deliberate action directed at two young girls.” Id. at 1148
(citation omitted). The dissent in Nunez concluded that, as “a
collateral attack, [the majority opinion] is sorely misplaced,”
explaining “[i]f … the majority means to remove lewd
conduct from the category of crimes involving moral
turpitude, its discussion is a wholesale assault on sex crimes
as crimes involving moral turpitude.” Id.
2. The Restoration by Cortes Medina
The BIA quickly “remed[ied the] deficiency” exploited
by the Nunez majority and published a decision defining
crimes under section 314.1 as CIMTs, unsurprisingly
adopting the analysis from the Nunez dissent. Cortes Medina,
26 I. & N. Dec. at 81 n.3. The BIA applied the categorical
approach to determine whether section 314.1 demonstrated a
“realistic probability” of criminalizing actions not involving
moral turpitude. Id. at 82 (citation omitted). Because
section 314.1 required lewd intent, the BIA surveyed the
caselaw and concluded that the element of intent brought “the
offense of indecent exposure within the definition of a crime
involving moral turpitude.” Id. at 83.
Analyzing California court decisions involving
section 314.1, the BIA noted that the defendants all “had the
requisite obscene or indecent intent at the time of the offense”
and determined that the Nunez majority created a “definition
of moral turpitude [that was] too narrow.” Id. at 83–84.
Adopting the Nunez dissent’s examination of the road rage
and classroom exposure cases, the BIA concluded that neither
the Nunez majority nor the respondent in the case before it
“presented any evidence that California applied the statute”
to conduct that was “not morally turpitudinous.” Id. at 86.

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REYES AFANADOR V. GARLAND 31
As such, the BIA decided that a conviction under
section 314.1 was “categorically a crime involving moral
turpitude for purposes of the immigration laws.” Id.
Post-Cortes Medina, our court in Betansos reluctantly
admitted that the BIA had overruled Nunez. Although
“hesitat[ing] to defer to the BIA’s general understanding of
the term ‘moral turpitude,’” Betansos, 928 F.3d at 1139
(citation omitted), this court ultimately deferred to Cortes
Medina because the panel could “[]not say that the BIA’s
decision [was] unreasonable” and thus had to defer under
Chevron v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). Betansos, 928 F.3d at 1142.
But because Betansos committed his section 314.1 crime
in 2002, the panel also analyzed whether it could apply
Cortes Medina retroactively pursuant to Montgomery Ward
& Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982). Betansos,
928 F.3d at 1143–46. The Betansos panel analyzed the third
Montgomery Ward factor—the petitioner’s reliance on a prior
rule—and concluded that Betansos could not demonstrate a
reliance interest on our court’s wrong Nunez decision because
Betansos’s last section 314.1 conviction was in 2002, long
before Nunez was decided. Betansos, 928 F.3d at 1145. This
holding on the third factor was dispositive because “Betansos
[could] not show[] that he in fact relied on Nunez (under
Montgomery Ward factor three).” Id.
Notwithstanding that the third factor controlled
Betansos’s appeal, the panel also asserted, despite its
irrelevance to the facts of the case, that the panel believed “it
would have been reasonable to rely on Nunez between
February 2010 and January 2013 (under Montgomery Ward

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REYES AFANADOR V. GARLAND 32
factor two).” Id. This statement was obviously dictum.2 And
as is often the case with dicta, because it was untethered from
2 Even though Betansos pled guilty in 2002 and therefore could not
have relied on our circuit’s 2010 Nunez decision when he pled, the
majority here contends that Betansos’s statement that “it would have been
reasonable to rely on Nunez between February 2010 and January 2013”
was not dictum because Betansos “could have demonstrated reliance” in
other ways by “identifying a specific event or action he took … in reliance
on Nunez” (quoting Betansos). But Betansos did not actually assert any
reliance on Nunez—whether in why he pled guilty in 2002 or in any of the
other ways referenced by the majority—so Montgomery Ward’s third
factor controlled everything in that decision, including any hypothetical
way that Betansos theoretically “could have” relied on Nunez (but didn’t).
The majority’s attempt to rely on counter-factual possibilities that
Betansos “d[id] not assert,” 928 F.3d at 1145, is as nonsensical as saying
that the Betansos’s second-factor discussion was not dicta because, even
though Betansos pled guilty in 2002, he “could have” pled guilty in 2011
(in some parallel universe).
The majority also objects that “Betansos’s analysis of the second
factor was ‘an issue germane’” to the case’s resolution and thus could not
be dicta, “[b]ecause no single Montgomery Ward factor is controlling.”
Perhaps no single factor is controlling, but obviously one or more factors
can be irrelevant in a particular case. See, e.g., Great W. Bank v. Off. of
Thrift Supervision, 916 F.2d 1421, 1432 (9th Cir. 1990) (“considering the
relevant [Montgomery Ward] factors,” the court determined that “two
elements weigh decisively in favor of the Bank Board,” highlighting that
there was no “well-established practice” and “the strong interest in
applying a rule that corresponds to the plain language of the statute,” and
did not discuss the other three factors). Indeed, the majority here
acknowledges this by observing that the first factor “does not apply in the
immigration context” at all. In Betansos, the second factor—i.e., whether
Cortes Medina was a “complete surprise” in light of Nunez—was just as
irrelevant as the first, given that “Betansos could not have relied on Nunez
when he pleaded guilty in 2002 because Nunez had not yet been decided.”
928 F.3d at 1145 (emphasis added). The entire discussion of the second
factor made no difference to the outcome in Betansos and was wholly
unnecessary. Id. at 1143–45.

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REYES AFANADOR V. GARLAND 33
any real facts actually presented in that case, in hindsight it
was also obviously wrong. The panel characterized Cortes
Medina as a “complete surprise” because it “represent[ed] an
‘abrupt departure’ from Nunez.” Id. at 1143–44 (quoting
Garfias-Rodriguez v. Holder, 702 F.3d 504, 521 (9th Cir.
2012) (en banc)). But this ignored years of unpublished BIA
decisions prior to Nunez—including the BIA’s decision in
Nunez itself—that consistently concluded that convictions
under section 314.1 are CIMTs. By the time our court in
Nunez concluded that a section 314.1 violation was not a
CIMT, the BIA had treated crimes under section 314.1 as
CIMTs for years, and previously had gone back and forth
with our court over that definition in unpublished decisions.
See, e.g., Pannu v. Holder, 639 F.3d 1225, 1227 (9th Cir.
2011) (noting that the BIA in 2004 held that Pannu’s
convictions under section 314.1 were CIMTs, but in 2006 this
court reversed the BIA in a memorandum disposition because
“indecent exposure convictions were not categorically
CIMTs,” causing the BIA to change its grounds for denying
Pannu relief); In re David Coronado Orozco,
No. AXXXXX3077-SAN, 2008 WL 4722691, at *1 (BIA
Oct. 3, 2008) (unpublished) (“[W]e agree with the
Immigration Judge that the respondent’s conviction under
California Penal Code § 314.1 is a crime involving moral
turpitude.”); In re Amir Gholamali Khaksarian, No.
AXXXX4241-SAN, 2007 WL 1676924, at *1 n.1 (BIA May
18, 2007) (per curiam) (unpublished) (acknowledging that,
given the state of the law before the BIA, “[t]he respondent
concede[d] that his conviction for indecent exposure [under
section 314.1 was] a CIMT”). The Betansos panel considered
none of this, but instead cursorily asserted that “[t]his is not
a case where there was an ongoing conversation or back-and-
forth between this Court and the BIA about the proper
interpretation.” Betansos, 928 F.3d at 1144.

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REYES AFANADOR V. GARLAND 34
And while the BIA’s decision in Cortes Medina obviously
was “an ‘abrupt departure’ from Nunez,” id. at 1143, that is
not the test under Montgomery Ward’s second factor. That
factor asks whether the BIA’s decision was “abrupt departure
from well established practice.” Montgomery Ward,
691 F.2d at 1333 (emphasis added). The BIA’s “well
established practice” dating back to at least 2004 was exactly
the same as its ruling in Cortes Medina: that a violation of
section 314.1 is a CIMT. Given the ongoing “back-and-forth
between this Court and the BIA” since at least 2004, the most
that could be fairly said was that Cortes Medina
authoritatively “fill[ed] a void in an unsettled area of law,”
Betansos, 928 F.3d at 1144 (citation omitted)—“unsettled”
only because, until our 2019 Betansos decision, we refused
for a decade-and-a-half to defer to the BIA’s consistent
position.
The majority in this case makes two unsuccessful
attempts to defend the substance of Betansos’s indefensible
conclusion that Cortez Medina represented a “complete
surprise.” Id. First, the majority tries to subtly refashion
Montgomery Ward’s second-factor inquiry from whether the
agency’s “new rule represents an abrupt departure from well
established practice,” Montgomery Ward, 691 F.2d at 1333
(emphasis added), into asking instead whether the agency had
any “adjudicatory rule” formally promogulated through the
agency’s precedential decision-making. If the agency didn’t
have any such formal “adjudicatory rule” arising from a
precedential decision, then, per the majority, none of the
agency’s past practice matters. But of course, if all that
Montgomery Ward’s second factor cared about was whether
the agency’s new rule was a departure from an old “rule”
(adjudicatory or otherwise), it could have easily said
that—and would have. Instead, the Mongomery Ward test

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REYES AFANADOR V. GARLAND 35
focuses on changes from past agency “practice” or “policy,”
not just an agency’s past formal “rules.”3
This is clearly demonstrated by the test’s namesake case
itself. Montgomery Ward was a case addressing FTC rules
regarding the placement of warranty information around
Montgomery Ward’s department stores, and the FTC argued
that the binders containing warranty information should have
been available on every floor. 691 F.2d at 1326–27. In
analyzing whether the FTC’s current interpretation of its rule
demonstrated “an abrupt departure from well established
practice,” the court in Montgomery Ward observed that the
plaintiff’s prior “involvement in the rule-making process
would indicate that [the new agency interpretation of the rule
in its order] would not be a complete surprise,” id.
at 1333–34, given that certain aspects of the new
interpretation were “presaged in the commentary published
in the Federal Register upon the promulgation of the presale
rule,” id. at 1330. Montgomery Ward’s discussion of the
activity prior to the promulgation of the agency’s formal rule
demonstrates the second factor’s inquiry does not stop at
3 In a footnote, the majority makes the same novel argument in a
different way: that unpublished BIA decisions “do not establish binding
policies or practices” because our court’s unpublished judicial decisions
are not precedential. Putting aside whether the comparison between an
agency’s and a court’s decisions is an apt one for this context, the majority
is again trying to refashion the Montgomery Ward test from considering
the agency’s past “practice” to considering only its “binding … practices.”
The second factor of Montgomery Ward has never been so constrained,
focusing only on an agency’s past “practices” that were technically
“binding” on other parties—i.e., formal “rules.” Rather, it broadly asks
whether the new rule is inconsistent with the agency’s “well established
practice.”

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REYES AFANADOR V. GARLAND 36
simply surveying past formal “rules.” “Well established
practice” is a broader inquiry.
This is further demonstrated by the two examples
contrasted in Montgomery Ward’s articulation of the second
factor. On one hand, “an abrupt departure from well
established practice” by the agency cuts against retroactive
application of a new rule. Id. at 1333. On the other hand,
where an agency is “merely attempt[ing] to fill a void in an
unsettled area of law,” that cuts in favor of retroactive
application. Id. Here, both of Montgomery Ward’s
paradigmatic examples favor the government. The BIA never
“depart[ed] from its well established practice,” and because,
prior to Cortez Medina, it had not issued a formal rule, it was
also “fill[ing] a void in an unsettled area of law.”4
Which leads directly into the majority’s second failed
attempt to bolster Betansos’s unnecessary dicta. The majority
strangely concludes that, while years of the BIA’s consistent
unpublished decisions did “not establish the practice or policy
of the agency,” somehow our court’s Nunez decision did. See
also Betansos, 928 F.3d at 1144 (“Cortez Medina did not ‘fill
4 To the extent the majority implies that the BIA’s nonprecedential
opinions do not put aliens on notice, there is no basis for that conclusion.
The point is not simply that unpublished decisions, in isolation, would put
an alien on notice; the point is that an alien could observe through Nunez
that there was a clear “back and forth” between this court and the BIA,
which would prompt an analysis of the BIA’s position—which would be
clear via the years of unpublished decisions. Any alien who read Nunez
itself would know both that (1) it was inconsistent with the BIA’s position,
and (2) the BIA has the last word on such questions. Nunez, 594 F.3d
at 1129. It is clear other petitioners were well aware of the BIA’s
consistent practice, see, e.g., In re Amir Gholamali Khaksarian, 2007 WL
1676924, at *1 n.1, and, as discussed, it is the agency’s “practice” that
matters.

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REYES AFANADOR V. GARLAND 37
a void.’ Nunez had already filled the void ….”). This is
directly at odds with our en banc court’s recognition that the
agency gets to tell us what ambiguous statutory terms like
“moral turpitude” mean, not the other way around. See
Garfias-Rodriguez, 702 F.3d at 523 (“any reliance … placed
on our decisions h[o]ld[s] some risk because our decisions
[a]re subject to revision by the BIA under Chevron and
[National Cable & Telecommunications Association v. Brand
X Internet Services (Brand X), 545 U.S. 967 (2005)]”).
Betansos’s statement that our court’s Nunez decision
constituted the well established practice of the BIA is
obviously not very well thought through, and the majority’s
decision to credit it flips the normal deference we give
agencies under Chevron and Brand X.
Both because the BIA’s Cortes Medina decision (1) was
not an “abrupt departure from well established practice,” and
because it (2) settled an “ongoing … back-and-forth between
this Court and the BIA about the proper interpretation” of
ambiguous language in INA, Montgomery Ward’s second
factor obviously cuts strongly in favor of the government.
Betansos, 928 F.3d at 1143–44. The Betansos panel reached
the opposite conclusion only because it addressed the issue as
dicta, “casually and without analysis” and as “merely a
prelude to” Montgomery Ward’s third factor—the “legal issue
that command[ed] the panel’s full attention” because it
controlled the outcome in Betansos. United States v.
Johnson, 256 F.3d 895, 915 (9th Cir. 2001) (en banc)
(Kozinski, J., concurring).

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REYES AFANADOR V. GARLAND 38
3. Our Court’s Embarrassing Nunez Blunder Does Not
Benefit Reyes
Even putting all that aside, and assuming we were still
operating in the vestiges of the shadow cast by our court’s
errors in Nunez and erroneous dicta in Betansos, we still
would not need to remand this case. While the majority
concludes the lingering presence of Nunez forces its hand, I
arrive at a different conclusion on how Montgomery Ward
factors two and three apply to Reyes’s multiple convictions.5
Under the third factor, while the majority argues that
Cortes Medina had a retroactive effect on Reyes’s 2011
section 314.1 indecent exposure conviction, Reyes’s
removability was only triggered by the commission of his
second CIMT in 2014—after the BIA had decided Cortes
Medina. Reyes was on notice by that point that he could not
rely on Nunez and that his conviction of a second CIMT
under California Penal Code section 314.1 would make him
removable. Thus, Montgomery Ward’s third factor weighs
against Reyes in this case.
As our court has repeatedly recognized, the “second and
the third factors are closely intertwined,” so it’s not surprising
that the second factor also goes against Reyes. Betansos,
928 F.3d at 1143 (citation omitted). Like the third factor,
since Cortes Medina had already issued before his second
section 314.1 indecent exposure conviction, Reyes can hardly
5 The majority inexplicably mischaracterizes my dissent as “little
more than a disagreement with Betansos.” While I do argue that
Betansos’s dicta was wrong and that we need not follow it, this section of
my dissent explains why, even applying that dicta, the majority reaches
the wrong conclusion.

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REYES AFANADOR V. GARLAND 39
argue that the immigration consequences of his second CIMT
conviction were a “complete surprise” or “abrupt departure
from well established practice” by the BIA. Id. (citation
omitted). Once Cortes Medina issued, Reyes could not
justifiably rely on Nunez in such a conflict because our court
is not the final arbiter of CIMT definitions—the Attorney
General is, as our court was forced to acknowledge in
Betansos. See also Garfias-Rodriguez, 702 F.3d at 523 (“any
reliance … placed on our decisions h[o]ld[s] some risk
because our decisions [a]re subject to revision by the BIA
under Chevron and Brand X”). And even if, until Betansos,
Reyes had reason to hope our court would ultimately refuse
to defer to the BIA, the most he could argue was that his
convictions occurred when the immigration consequences of
those convictions were “an unsettled area of law.” Betansos,
928 F.3d at 1143 (citation omitted). Again, that would mean
Montgomery Ward’s second factor goes against him. Cf.
928 F.3d at 1143–44.6
6 The majority seems to assume that because Montgomery Ward’s
second and third factors are often intertwined, the panel in Betansos had
to decide the second factor, even when the third factor was decisive. But
that position ignores the reason the two factors are often intertwined:
because it is only when an agency’s action arises out of well established
practice that a petitioner can establish reliance on that practice. Where
there was no reliance, as in Betansos, it makes no difference whether the
practice was well established. That the factors are often related doesn’t
mean the court always must address both. Indeed, as in Betansos,
precisely because they are related sometimes one factor will control,
rendering the other superfluous.

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REYES AFANADOR V. GARLAND 40
A. Montgomery Ward Factor 3
The majority focuses solely on Reyes’s 2011 crime and
determines that, based on caselaw where a change in the
applicable law changed the impact of a single crime on the
petitioner’s life, Cortes Medina “attache[d] a new disability”
to Reyes’s 2011 conviction for indecent exposure under
California Penal Code section 314.1 by defining it as a CIMT.
This analysis overlooks a key point: had Reyes only been
convicted that single time in 2011, Cortes Medina would
have no impact whatsoever on his immigration status—Reyes
needed two convictions for indecent exposure to trigger his
deportation based on CIMT convictions. See 8 U.S.C.
§ 1227(a)(2)(A)(ii). It was the last domino to fall—the 2014
indecent exposure conviction—that triggered Reyes’s
eligibility for deportation.7
7 Following an unfortunately well-traveled path for our court, the
majority supports this part of its decision by advocating for the petitioner,
making arguments on his behalf that he never made himself. See United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (chastising our
court for ignoring the party presentation principle). Citing 8 U.S.C.
§ 1227(a)(2)(A)(i), the majority defends its blinkered focus on Reyes’s
2011 conviction by arguing that that conviction alone might have created
other hypothetical immigration consequences. But Reyes presumably
didn’t make that argument because it’s irrelevant. The government has
not sought to remove Reyes under § 1227(a)(2)(A)(i). What matters for
purposes of reliance in this case is whether Reyes could have relied on
Nunez as giving him a free pass under the only provision at issue in this
case: § 1227(a)(2)(A)(ii). As explained, when he committed his second
CIMT in 2014 after Nunez was gone, he could not. The majority’s
speculative invocation of § 1227(a)(2)(A)(i) is strange. Conjecture that
the government’s hypothetical use of a past conviction could create
retroactivity problems in an entirely different imaginary case involving an
entirely different statutory provision says nothing about the retroactivity
or reliance issue in this case, and I am unaware of any caselaw to the
contrary.

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REYES AFANADOR V. GARLAND 41
The cases the majority cites highlight this distinction, as
Justice Ginsburg specifically distinguished the retroactive
application of the law at issue in Vartelas from “prosecutions
depend[ing] on criminal activity … occurring after the
provision’s effective date.” Vartelas v. Holder, 566 U.S. 257,
270 (2012). Reyes’s case was not a situation in which he
continued acting lawfully and the law changed in a way that
would impact his life based on a “crime he was ‘helpless to
undo.’” Id. (citation omitted). Immediately after Cortes
Medina was decided, Reyes was and would have remained
unaffected—as long as he did not commit another indecent
exposure.
Instead, Reyes recidivated and was again convicted of
indecent exposure in 2014. As such, the effect of Cortes
Medina is more like an “[e]nhanced punishment imposed for
the later offense[, which] is not to be viewed as an additional
penalty for the earlier crimes, but instead, as a stiffened
penalty for the latest crime, which is considered to be an
aggravated offense because [it is] a repetitive one.” Id.
at 271–72 (cleaned up) (quoting Witte v. United
States, 515 U.S. 389, 400 (1995)); cf. Landgraf v. USI Film
Prods., 511 U.S. 244, 280 (1994) (observing that statutes
have an impermissible retroactive effect when they “impose
new duties with respect to transactions already completed”
(emphasis added)). Increasing punishment for repetitive
criminal convictions after an individual commits his first
crime, and imposing that enhancement only after the
individual is convicted for a subsequent crime, does not
constitute an impermissible retroactive application. See
Rummel v. Estelle, 445 U.S. 263, 278 (1980) (affirming the
trial court’s application of Texas’s recidivist statute, passed
after Rummel’s first two felonies, to Rummel’s third felony
conviction to incarcerate him for life, because he had been

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REYES AFANADOR V. GARLAND 42
“informed of the consequences of lawlessness and given an
opportunity to reform, all to no avail. [The recidivist statute]
thus is nothing more than a societal decision that when such
a person commits yet another felony, he should be subjected
to the admittedly serious penalty of incarceration for life
.…”); People v. Murillo, 46 Cal. Rptr. 2d 403, 407–08 (Ct.
App. 1995) (although the defendant argued that “because he
suffered his prior conviction before the Three Strikes Law
became effective, his prior [crime] cannot qualify as a
‘strike,’” the court “disagree[d]” because such a “view is
patently inconsistent with the purpose of the statute and the
companion initiative and, in our view, constitutes an absurd
result”). All Cortes Medina did to Reyes was increase the
potential consequences if he decided to reoffend in the
future.8
Whether Reyes would have thought in 2011 that a
conviction under section 314.1 was a CIMT is simply not
relevant in this case—his first section 314.1 conviction in
2011 did not trigger his deportation under 8 U.S.C.
§ 1227(a)(2)(A)(ii), which requires “two or more crimes.”
8 The majority strives mightily to avoid any consideration of how
courts have treated recidivism laws, asserting that “cases analyzing
recidivist statutes are not relevant here” because there are differences
between such statutes and immigration statutes, including that retroactivity
is more permissible in the recidivism context. No doubt there are
differences. But none of those differences have any relevance with
respect to why the analysis from those cases fits perfectly here. I don’t
reference those cases to argue that retroactive application of Cortez
Medina should be allowed here. I reference them to show that applying
Cortez Medina here is not retroactive at all. The rationale that applying
an enhanced penalty is not retroactive where the offender’s last crime in
a series was committed after the enhanced penalty was enacted is directly
on point with this case, and the majority’s attempt to distinguish those
cases for entirely irrelevant reasons is telling.

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REYES AFANADOR V. GARLAND 43
The relevant question is whether Reyes, in the moments
before he violated section 314.1 for a second time in 2014 by
publicly masturbating in front of a store, could have
constructively relied on Nunez to protect his imminent crime
under section 314.1 from being defined as a second—and
therefore removable—CIMT. Given the intervening Cortes
Medina decision before his second offense, the answer is no.
Cortes Medina made clear that Reyes’s earlier 2011
section 314.1 offense was, in fact, a CIMT, and that if he
committed and was convicted of a second section 314.1
offense, he would be removable under § 1227(a)(2)(A)(ii).
As the Betansos panel explained, we may presume
reliance if the “former, favorable rule was in place at the time
the petitioner pleaded guilty or was convicted.” Betansos,
928 F.3d at 1144. But because the BIA’s authoritative Cortes
Medina decision had already superseded the Nunez decision
when Reyes pled in 2014, Reyes cannot demonstrate reliance
on Nunez under factor three. He “knew” (either
constructively or in reality) that he already had one CIMT
under Cortes Medina, and that by pleading to a second, he
would become deportable. Reyes therefore could not have
“relied” on Nunez when it mattered: when he pled to his
second CIMT in 2014.9
9 The majority argues that the government in this case did not rebut
the presumption that Reyes relied on Nunez. There was no presumption
to rebut, because Reyes’s 2014 conviction—after the “former, favorable
rule was in place” even under Betansos’s faulty dicta—was what triggered
his removability under § 1227(a)(2)(A)(ii). Moreover, as the government
observed, Reyes provided “no evidence that he actually relied on Nunez
in 2011.”

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REYES AFANADOR V. GARLAND 44
B. Montgomery Ward Factor Two
The majority here accepts the Betansos panel’s factor two
dicta, but as discussed, our panel is not bound by that
obviously wrong and unreasoned dicta and should not
reflexively apply it here to conclude that the second factor
weighs in favor of Reyes. But even if we were required to
follow Betansos’s dicta, the key facts of this case are different
from Betansos’s hypothetical because Reyes committed his
critical second offense and pled guilty in 2014, after “it
would have been reasonable to rely on Nunez between
February 2010 and January 2013.” Betansos, 928 F.3d at
1145. And even if the second factor did weigh in favor of
Reyes, here, as in Betansos, the fact that the third (and fifth)
factors weigh against Reyes would result in denying his
petition. See Betansos, 928 F.3d at 1145–46 (“[A]lthough the
second factor arguably favors Betansos, we have held that
factors two and three are ‘intertwined.’ Because factor three
weighs against Betansos in this case, we hold that overall the
factors support retroactive application against Betansos.”).
* * *
Today’s decision demonstrates what we all know from
hard experience: fixing mistakes is usually much harder than
making them in the first place. Unfortunately, the majority’s
opinion perpetuates rather than acknowledges and addresses
some of our more blatant recent immigration gaffes, and in so
doing misses an opportunity to right our circuit’s badly listing
immigration ship—at least a little. Reyes continued to
commit crimes of moral turpitude even after he was on notice
that if he committed another one, he would suffer

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REYES AFANADOR V. GARLAND 45
immigration consequences. I would deny his petition, and so
must respectfully dissent.10
10 Reyes’s other arguments on appeal relating to his application for
cancellation of removal and an alleged due process violation are similarly
unavailing. We lack jurisdiction to review the merits of a discretionary
decision to deny cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i);
Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012). And although
Reyes claims he was not afforded the opportunity to testify regarding his
asylum claim, the IJ held multiple hearings to address the merits of his
arguments for relief from removal, where he received “a full and fair
opportunity to be represented by counsel … and to present testimony and
other evidence in support of [his asylum] application.” Vargas-Hernandez
v. Gonzales, 497 F.3d 919, 927 (9th Cir. 2007).

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