NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 13 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SERGIO ZAMBRANO AMEZCUA, No. 22-1227 Agency No. Petitioner, A099-067-748 v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted September 11, 2023** Pasadena, California

Before: M. SMITH, FRIEDLAND, and MILLER, Circuit Judges.

Sergio Zambrano Amezcua, a native and citizen of Mexico, petitions for

review of a decision of the Board of Immigration Appeals dismissing his appeal

of an immigration judge’s decision pretermitting his application for cancellation

of removal. We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We assume without deciding that the Board’s decision in Matter of Wu—

holding that assault with a deadly weapon under California Penal Code section

245(a)(1) is categorically a crime involving moral turpitude—marked a change

in the law from 2003, when Zambrano Amezcua pleaded guilty to that crime. 27

I. & N. Dec. 8, 9 (B.I.A. 2017); see Olivas-Motta v. Whitaker, 910 F.3d 1271,

1276 (9th Cir. 2018). “Whether a new agency interpretation may be applied

retroactively is a question of law,” which we review de novo. Id. at 1275.

The Board correctly held that Wu applies retroactively to Zambrano

Amezcua. To determine whether an adjudicatory decision by an agency has

retroactive effect, we apply the multi-factor balancing test laid out in

Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982). See

Lemus v. Lynch, 842 F.3d 641, 649 (9th Cir. 2016). Under that test, the court

considers “(1) whether the particular case is one of first impression, (2) whether

the new rule represents an abrupt departure from well established practice or

merely attempts to fill a void in an unsettled area of law, (3) the extent to which

the party against whom the new rule is applied relied on the former rule, (4) the

degree of the burden which a retroactive order imposes on a party, and (5) the

statutory interest in applying a new rule despite the reliance of a party on the old

standard.” Montgomery Ward, 691 F.2d at 1333 (quoting Retail, Wholesale &

Dep’t Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972)).

The first factor favors neither party. Acosta-Olivarria v. Lynch, 799 F.3d

1271, 1275 (9th Cir. 2015). That factor was “meant to ensure that the party

2 22-1227 responsible for a change in law receives the benefits of the new rule,” but in the

immigration context, where the government is always a party, “this concern is

less relevant.” Id. (citing Garfias-Rodriguez v. Holder, 702 F.3d 504, 520–21

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

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

closely intertwined” and “will favor retroactivity if a party could reasonably

have anticipated the change in the law such that the new ‘requirement would not

be a complete surprise.’” Garfias-Rodriguez, 702 F.3d at 521 (quoting

Montgomery Ward, 691 F.2d at 1333–34). For Zambrano Amezcua, the rule

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

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

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

precedents pointing in different directions. Compare Gonzales v. Barber, 207

F.2d 398, 400 (9th Cir. 1953) (holding that assault with a deadly weapon under

California law is, “per se,” a crime involving moral turpitude), overruled by

Ceron v. Holder, 747 F.3d 773, 781 (9th Cir. 2014) (en banc), with Carr v.

INS, 86 F.3d 949, 951 (9th Cir. 1996) (holding that assault with a firearm

under California Penal Code section 245(a)(2) is not a crime involving moral

turpitude), overruled by Ceron, 747 F.3d at 782. Wu simply settled this open

question.

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

substantial burden that weighs against retroactive application of an agency

3 22-1227 adjudication.” Garfias-Rodriguez, 702 F.3d at 523 (quoting Miguel-Miguel v.

Gonzales, 500 F.3d 941, 952 (9th Cir. 2007)).

Finally, the fifth factor favors retroactivity, “because non-retroactivity

impairs the uniformity of a statutory scheme, and the importance of uniformity

in immigration law is well established.” Garfias-Rodriguez, 702 F.3d at 523.

Overall, the Montgomery Ward factors weigh in favor of applying Wu to

Zambrano Amezcua retroactively. And under Wu, Zambrano Amezcua’s

conviction for assault with a deadly weapon under California Penal Code

section 245(a)(l) is categorically a crime involving moral turpitude. 27 I. & N.

Dec. at 9. Zambrano Amezcua is therefore ineligible for cancellation of

removal. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C).

The motions to stay removal (Dkt. Nos. 2, 10) are denied. The temporary

stay of removal is lifted upon issuance of the mandate.

PETITION DENIED.

4 22-1227