next on the calendar this morning is obey of versus sessions immigration appeals had a clear rule for a theft offense to be a crime involving moral turpitude the offense had to require for conviction proof that the defendant intended to deprive the owner of property dispute new york's larceny statute includes elements that allow conviction without proof of intent to deprive the owner of property permanently so categorically new york's petty larceny statute did not meet the b i e s longstanding standard for a crime involving moral turpitude and that's not in dispute either thus when mr obey pleaded guilty to petty larceny in new york state in two thousand and eight he did not admit to and he was not convicted for committing a crime that was categorically a crime involving moral turpitude and categor not a remand issue simply reversed i argued at the time that the court could have could have could have done that it could have taken that as a matter of law but the court had discretion to rema remit and is as in numerous instances where you have an appellate court facing an issue of law if the lower tribunal has not have an opportunity to address the issue it is giving the lower tribunal a chance to do so as of that time there was no presidential decision of the board of immigration appeals that said that petty larceny in new york was a crime and involving moral turpitude this decision involving mr obey is the first time that the board has said that what is significant though is when you look to two thousand and eight when you look to two thousand and eight what is the state of the law at that time and there are presidential decisions of the b i a which laid down what both the obey a decision on review now and the diaz lizza raga decision on which it relies say that permanent deprivation of property is essential and must be proved for this to be a crime involving turpitude you also have other decisions and i can see that they are non presidential but there non presidential going both some going both ways but there are non presidential decisions saying that the intent element the same intent element that's being considered here does not rise to the level of permanent deprivation and that was the state of the law in two thousand and eight there are other decisions presidential decisions going back to the one nine hundred forty s oddly made in cases involving measuring canada's theft statute against us law saying that when you have a statute that includes both precedent about what a crime involving moral turpitude is in the area of larceny and since you the be have not previously formally addressed how the new york law matches up with the definition of crime involving moral turpitude take a shot and tell us what you think is that fair way of characterizing it i will accept that as a fair way of characterizing the decision and what also exists at that time and your and what you're saying is and they took their shot and they didn't really want to take their shot they instead said we just today who incidentally decided to change rules about what is a crime involving moral turpitude in the zone of larceny statutes and under our new definition new york petty larceny qualifies and your argument is that is a retroactive change because mr obey and people like him could have relied would reasonably have relied on in taking guilty pleas on the the idea that new york petty back but as a backdrop to that this court had decided the woll a case at that time and while ultimately held in that circumstance the crime involved their petty larceny in connecticut statute similarly worded to the new york statute where the b i a had decided in that case that a permanent taking was required in the context of the connecticut statute they said at that time applying a modified categorical approach what's what's proved there does not rise to the level of permanent deprivation what you see in the decisions here in diaz lizza raga and in the obey case itself is recognition by the b i a that unless the standard was changed to go from permanent taking to some less demanding than that petty larceny in new york would not be a crime involving moral turpitude and the retroactive application of that is the basis for granting the the petition in this case and india is itself the b i a said this is a change we used to say something and that we're saying something different  that is correct they be it can't be contested if if you look at the retroactivity factors here really the the action i think is in factors two and three because the government does concede it would be extremely would say this was reflecting kind of evolving standards and this is you know this is substantial erosion standard is kind of encompassed in what we've always talked about as larceny right that is the government's some rule that's been around just because it's seventy years old they know they are changing something from permanent to less than permanent and that means it's an abrupt and significant change and can't be applied retroactively i reserve the balance of my time thank you very much turpitude in light of the statutes requirement than an individual intend either a permanent or virtually permanent occupation or appropriation of the victim's property and in matter of dia's or i'll go to the shoes of the companion to the decision in this published decision in this clarify i would suggest that this is more refinement of the law of the definition of c m t in the larceny context if you look at the fact that the board also emphasized that it wasn't taking away the permanent versus temporary different it's different in the to the extent that there's a literal taking and then literally permanent taking an apartment taking that might not be literal but where the erosion of property rights are such that it might as well have been represents ability of the act isn't that why the drafters of the model penal code recommended in the first place back in the one nine hundred sixty s changing the law of larceny because it's it recognized that the common law standard of intent to deprive permanently was sometimes difficult to prove and there were many acts that are just as dead as depriving someone permanently of their property and so the model  recommended a change in the common law the states reacted and it took a long time for the b i a to get around to saying yes it's time to change our understanding to incorporate that change in the criminal law of a majority but not all states but i'm still so yeah i don't think anybody is contesting at least for purposes of this case that it's you know going forward there's something arbitrary  or wrong about the current interpretation of what is a crime involving moral turpitude the issue is only is this a new rule or an old rule so how can you but how can you say it's a new it's an old rule when the board itself says we're changing our longstanding seventy year old rule to bring it into conformity with modern law i would say that the board's clarifying or refining the old law still applies if you look at the cases that published decisions the board made the distinction between temporary and permanent joyriding when you're borrowing something that still stands that's not a change but isn't that because in a joyriding statute there is not evidence of the intent to inflict this additional element of so much of a depreciation that it deprives the owner of most of the economic value it joyriding statute still doesn't qualify under the new standard the question is what qualifies what was the change the change picks up statutes that were not picked up by the old standard and are picked up by the new one the fact that there are still other statutes that aren't even picked up by the new standard i'm not sure how that affects whether it's a change that is relevant insofar as it picks up the statute that is applied to mr bad i think i would say that the law was unclear as to whether the new york state penal code statute or penal codes like it that covered virtually permanent takings would have been covered because you also had published four decisions stating that larceny was  they just say that they say larceny is that just like they didn't obey is first case where we reversed but in those cases that wasn't even an issue when obey is case it was an issue and we reversed because the board  thought eroni asli had applied this sort of vague dictum that all larceny is a crime involving moral turpitude when that was not in fact the board's standard right isn't it is there a case in which the being deported someone who made the argument that this statute under which i was convicted does not have the element  board makes some error that no one calls to its attention about what its own standard is and how that matches up with the the petty larceny statute before it how does that make new law or through the law into some genuine state of confusion if all that happened was you know an argument isn't raised and the board says something  that is in a non published opinion no less i think i mean we're talking about reasonable reliance with the the brought the decisions that the board had at the time it would be hard to say no in my situation in this case this could never be considered a crime involving moral turpitude when you have decision saying we can presume a permanent taking a course you say we presume a permanent taking doesn't that raise problems under the categorical approach in another problem with some of this board case law some of it is very old and it strikes me that it may not have been applying the categorical approach as the supreme court has clarified it so to speak in recent years on the authority to readdress and refine and reconsider under principles of chevron brand x and so we would ask that the agency did not conduct an explicit retroactivity analysis even though it acknowledge that this was a change in the law that's and you've argued on appeal that there's an interest in uniformity which i would see as going forward but agency has not really grappled with the import of applying this significant departure in life you to mr obey who entered his plea based on an entirely different understanding about what the law required what is your position that the the there's an interest in uniformity that outweighs the burden that this places on the  look at you know each circumstance that comes before it and says say well what did they rely on at the time what what was the state of law in two thousand and eight is that when the plea was entered i think it was that's what i think it was unclear i think there were decisions going both ways in terms of making the time a strong temporary versus permanent distinction and others not suggesting that there was such a distinction and others saying that the permanent intention can be presumed fact at the time that that should have been the first thing you brought to the attention of the immigration judge and so i think that is very telling as to why i also think that this court got it wrong last time because we should have held  know and it chose instead to give the board a chance to address the issues that had not been raised to the born at that you know before that if we conclude that there is a significant retroactivity problem is it your contention or have you argued that we ought to remember yet again to let the board take the first crack at the retroactivity issue the court could do that i mean in the first issue is reasonable interpretation on a going forward basis and while mr mark may disagree i don't think that's the argument that he's presenting here today that we should say the board acted reasonably in changing its interpretation he's only saying that it should not support its change shouldn't apply retroactively but a different question than whether it's a reason absolutely different question i'm not i'm not contesting that i'm simply saying that if you get to the point of determining that yes this is a reasonable interpretation and yes the board the new york state statute does meet that new definition then you could very well be man's to the board for it depends on whether this court also decided whether or not it would defer to the board's broader definition as we thought that this case has been around too long a time it was time to put a close to it and we simply reversed with instructions to well designed it now is it was a retroactive application that was in permission i think it would still leave open the question as to how going forward the statute should be defined we're talking about a lot of state statutes that this now the situation where the board has made its mark conform to the modern penal code as applied to move states so that's pretty good statement that it's a good luck going forward right and we just simply said i said to mister it's impermissible but you active application the time but certainly i mean many people are convicted under the new york state penal code so it would be it would be presumably if we said this could not be applied retroactively than anyone who pled guilty to petty larceny in new york before the date of the day as was a raga decision would be governed by the same rule that we would be applying to mr rebecca is that but we don't know how many people are in the in the system it's and it's a matter of always a probable cause that would be just be applying the law as it stood then and as matter of the concept brought about with the other right that previous controlling statute was and that's what everyone's expectations were at the time so hellerstein i think the administrative consequences of a decision granting a petition in this case would be clarity you would have a clear rule that said if he's going forward from d s there's a right and we know that this is what the rule is today but before that's what state the law was applied then and if such cases come up you know people will argue them at the time going forward there may be some other case that will arise after diaz lizza rago or someone will make an argument about the change in the rule and whether it was reasonable and all that but we're not doing that here it would be it would be somewhat dictum for us if we decided that assuming that it is a reasonable interpretation going forward nevertheless it can't be applied in this case then this would not be an appropriate case perhaps to make a definitive declaration of whether it is a reasonable rule or not because that's not really at issue that's not something you're arguing in this case you don't have to reach the question of whether disturbed that's not to stir and i would argue and again as far as the state of the law again how decisions were rendered and the basis for them you know it is important to understanding what's going on here the only decision that is cited i believe in the government's brief for a pre two thousand and eight b i a non presidential ruling that says one fifty five twenty five is a crime involving is matter of joseph pierre and what you read when you get to the bottom of the first page of that case is that the charge party had not contested the issue so these issues were not fleshed out were not litigated were not focused on