16-3922-ag

Obeya v. Sessions

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

 

August Term, 2017

(Argued: October 30, 2017 Decided: March 8, 2018)

Docket No. 16-3922-ag

 

CLEMENT OBEYA,

Petitioner,

— v. — 

JEFFERSON B. SESSIONS III, United States Attorney General,

Respondent.

 

B e f o r e:

LYNCH and CARNEY, Circuit Judges, and HELLERSTEIN, District Judge.*

 

Clement Obeya, a lawful permanent resident of the United States, was

convicted of petit larceny under New York law. The government sought to

remove Obeya for his conviction, treating it as a “crime involving moral

 Judge Alvin K. Hellerstein, of the United States District Court for the Southern

*

District of New York, sitting by designation.
turpitude.” The Immigration Judge and Board of Immigration Appeals found

that Obeya was removable based on his conviction, but this Court remanded due

to the agency’s failure to apply BIA precedent holding that larceny involves

moral turpitude only when it is committed with the intent to deprive the owner

of property permanently. On remand, the BIA again found Obeya removable,

holding that his offense involved moral turpitude by applying a new rule,

announced in another case that same day, expanding the types of larceny that

qualify as such crimes. Obeya challenges the BIA’s retroactive application of that

rule to his case. We GRANT review and REVERSE the BIA’s order.

 

RICHARD MARK, Gibson, Dunn & Crutcher LLP, New York,

NY, for Petitioner.

RACHEL L. BROWNING , Trial Attorney (Claire L. Workman,

Senior Litigation Counsel, on the brief), Office of Immigration

Litigation, for Chad A. Readler, Acting Assistant Attorney

General, Civil Division, United States Department of Justice,

Washington, DC, for Respondent.

Andrew Wachtenheim, Immigrant Defense Project, New York,

NY, for Amicus Curiae Immigrant Defense Project.

 

GERARD E. LYNCH, Circuit Judge:

Clement Obeya is a lawful permanent resident of the United States. In

2008, he was convicted of petit larceny under New York law. The government

initiated removal proceedings against Obeya, charging that his conviction

constituted a “crime involving moral turpitude.” The Immigration Judge (“IJ”)

found that Obeya was removable based on his conviction and the Board of

2
Immigration Appeals (“BIA”) affirmed, but this Court held that the IJ had failed

to apply BIA precedent holding that larceny involves moral turpitude under 8

U.S.C. § 1227(a)(2)(A)(i) only when committed with the intent to deprive the

owner of property permanently. See Obeya v. Holder, 572 F. App’x 34 (2d Cir.

2014) (“Obeya I”), granting pet. for review of Matter of Obeya, No. A055 579 757

(B.I.A. Aug. 7, 2012). We therefore remanded to the BIA “to determine in the first

instance whether Obeya’s conviction under [N.Y. Penal Law § 155.25]” rendered

him removable. Obeya I, 572 F. App’x at 35.

On remand, the BIA again found Obeya removable. See Matter of Obeya, 26

I. & N. Dec. 856 (B.I.A. 2016) (“Obeya II”), aff’g No. A055 579 757 (Immig. Ct.

Batavia Mar. 13, 2012). But the BIA did not rely in Obeya II on the precedent that

this Court had identified in Obeya I; rather, the BIA found Obeya removable

under a new rule first announced in a case decided the same day as Obeya II. See

Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (B.I.A. 2016). In his present petition to

this Court, Obeya challenges the BIA’s retroactive application of that rule to his

case. For the reasons set forth below, we again GRANT review and REVERSE the

BIA’s latest order.

3
BACKGROUND

Obeya, a native and citizen of Nigeria, was admitted into the United States

in 2004 as a lawful permanent resident. Four years later, in the County Court of

Albany, New York, he pled guilty to petit larceny in violation of Section 155.25 of

the New York Penal Law. That offense carries a maximum penalty of one year’s

imprisonment. See N.Y. Penal Law §§ 70.15(1), 155.25. The court sentenced Obeya

to three years’ probation, and in 2011 sentenced him to ten months’

imprisonment for violating the terms of his probation.

Shortly after Obeya’s conviction, the Department of Homeland Security

charged him with being removable under 8 U.S.C. § 1227(a)(2)(A)(i) as an alien

convicted of a crime involving moral turpitude, committed within five years of

admission to the United States, for which a court may impose a sentence of one

year or longer.

The IJ held that Obeya was removable because “any type of larceny or theft

offense . . . constitutes a crime involving moral turpitude.” A.R. 787–88 (emphasis

added). The BIA dismissed Obeya’s appeal. He then petitioned this Court for

review, which we granted because “under BIA precedent larceny constitutes a

[crime involving moral turpitude] ‘only when a permanent taking is intended.’”

4
Obeya I, 572 F. App’x at 35, quoting Wala v. Mukasey, 511 F.3d 102, 106 (2d Cir.

2007) (Sotomayor, J.) (emphasis added). Because the IJ had misstated the law, we

remanded the case to the BIA “to determine in the first instance whether Obeya’s

conviction under [N.Y. Penal Law] § 155.25 constitutes a [crime involving moral

turpitude].” Id.

On remand, the BIA again dismissed Obeya’s appeal, holding in a

November 16, 2016, decision that, under the published opinion issued that same

day in Diaz-Lizarraga, 26 I. & N. Dec. 847, the BIA now deemed theft crimes to

involve moral turpitude where there is “an intent to deprive the owner of his [or

her] property either permanently or under circumstances where the owner’s

property rights are substantially eroded.” Obeya II, 26 I. & N. Dec. at 859, quoting

Diaz-Lizarraga, 26 I. & N. Dec. at 854 (emphasis added). The BIA noted that

although “the plain language” of New York’s petit larceny statute “does not

require a showing that a permanent deprivation or substantial erosion of

property rights was intended,” id. at 860, the New York Court of Appeals “has

determined that a conviction for larceny requires proof of an intent ‘to exert

permanent or virtually permanent control over the property taken,’” id., quoting

People v. Medina, 18 N.Y.3d 98, 105 (2011). According to the BIA, the larceny

5
statute’s inclusion of “virtually permanent” deprivations of property brought it

under Diaz-Lizarraga’s “substantial erosion” standard. Id. at 860–61. Obeya

petitions this Court for review.

DISCUSSION

Obeya argues that the BIA erred by retroactively applying the rule

announced in Diaz-Lizarraga to his case. It did.1

Agencies may create new rules through adjudication, but the retroactive

application of the resulting rules “must be balanced against the mischief of

producing a result which is contrary to a statutory design or to legal and

equitable principles.” SEC v. Chenery Corp., 332 U.S. 194, 203 (1947). We weigh the

following factors to determine whether an agency may apply a new rule

retroactively:

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

whether the new rule presents 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

 Because we hold that the BIA erred by retroactively applying its new standard 1

to Obeya, we do not reach his alternative arguments that the BIA exceeded the

scope of this Court’s decretal language in Obeya I and that petit larceny under

New York law is not a crime involving moral turpitude even under the DiazLizarraga standard.

6
which a retroactive order places on a party, and (5) the

statutory interest in applying a new rule despite the

reliance of a party on the old standard.

Lugo v. Holder, 783 F.3d 119, 121 (2d Cir. 2015).

As in Lugo, the first and fourth factors “are not seriously at issue in the case

before us,” id., and both favor Obeya. The intent necessary for a larceny crime to

involve moral turpitude was resolved in “the Board’s earliest days,” and is not an

issue of first impression for the BIA. Diaz-Lizarraga, 26 I. & N. Dec. at 849–50

(collecting cases speaking to that issue dating back to 1941). And the government

concedes that the fourth factor, the burden of retroactive application, favors

Obeya because “removal from the United States, with life-changing

consequences,” is a “massive” burden for any immigrant. Lugo, 783 F.3d at 121;

Resp. Br. at 35. All the more so for Obeya, who arrived in this country at the age

of 17 and has few if any close relations in Nigeria.

The heart of this case rests with the second and third Lugo factors: whether

Diaz-Lizarraga was an abrupt departure from BIA precedent and whether Obeya

relied on the previous rule when pleading guilty. The government argues that

the BIA did not depart in Diaz-Lizarraga from its precedent regarding when

larceny involves moral turpitude. Rather, the BIA was merely “revising its

7
standard to reflect the modern definition of theft” without “distancing itself from

the results reached under its prior standard.” Resp. Br. at 33. If the BIA did not

change its rule, Obeya’s reliance on that rule would be irrelevant.

Both the language of Diaz-Lizarraga and the history of theft statutes in this

country belie the government’s argument. In Diaz-Lizarraga, the BIA explained

that “[f]rom the Board’s earliest days [it] ha[s] held that a theft offense

categorically involves moral turpitude if—and only if—it is committed with the

intent to permanently deprive an owner of property.” 26 I. & N. Dec. at 849

(emphasis in original). That rule was adopted during a period when most theft

statutes “distinguish[ed] between substantial and reprehensible deprivations of

an owner’s property on the one hand and, on the other, mere de minimis

takings.” Id. at 850.

Since that time, most states have updated their theft statutes to reflect the

terms of the Model Penal Code’s article on theft crimes, which requires for a

larceny conviction that a defendant take property “with purpose to deprive [the

owner] thereof,” and defines “deprive” to include takings of property

“permanently or for so extended a period as to appropriate a major portion of

[the property’s] economic value.” Am. Law Inst., Model Penal Code &

8
Commentaries, pt. II, §§ 223.0(1), 223.2(1) (Official Draft & Revised Comments

1980); see Diaz-Lizarraga, 26 I. & N. Dec. at 851–52 & nn.4–8 (collecting statutes

and cases from around the country “recogniz[ing] that many temporary takings

are as culpable as permanent ones”). The BIA explained in Diaz-Lizarraga that its

“case law ha[d] not kept pace with [those] developments” and that it accordingly

decided to “update [its] existing jurisprudence,” holding that “a theft offense is a

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

his [or her] property either permanently or under circumstances where the

owner’s property rights are substantially eroded.” 26 I. & N. Dec. at 852–53

(emphasis added).

The BIA’s own words in Diaz-Lizarraga trace this transformation for us. For

decades, the BIA applied one rule: that a larceny offense constitutes a crime

involving moral turpitude only when the larceny statute in question required, as

had the common law, an intent to deprive the victim of property permanently.

But in Diaz-Lizarraga, acknowledging that most states had expanded on the

common law definition of larceny after the promulgation of the Model Penal

Code to cover a broader range of conduct, the BIA decided to “update” its rule

and to expand its definition of moral turpitude to cover conduct that better

9
reflects the modern definition of larceny. The BIA thus explicitly acknowledged

that Diaz-Lizarraga created a new rule, different from the one that it

acknowledged it had followed “[f]rom the Board’s earliest days.” Id. at 849.

The government cites several BIA and circuit court opinions decided

before Diaz-Lizarraga to argue that “crimes of theft and larceny . . . [had already

been] presumed to involve moral turpitude,” Resp. Br. at 30 (emphasis added), or 2

that the BIA had previously determined that “a conviction under [N.Y. Penal

Law] § 155.25 was categorically a crime involving moral turpitude.” Id. at 34, n.7.3

But we have reviewed those cases and find them unconvincing. 

For example, in Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (B.I.A. 2006), the

BIA examined a conviction under a Pennsylvania law defining “retail theft” as

“tak[ing] possession of . . . any merchandise displayed, held, stored or offered for

sale by any store or other retail mercantile establishment.” 18 Pa. Cons. Stat.

See, e.g., Chiaramonte v. INS, 626 F.2d 1093 (2d Cir. 1980); Brett v. INS, 386 F.2d 2

439 (2d Cir. 1967); Giammario v. Hurney, 311 F.3d 285 (3d Cir. 1962); Matter of

Jurado-Delgado, 24 I. & N. Dec. 29 (B.I.A. 2006); Matter of Grazley, 14 I. & N. Dec.

330, 333 (B.I.A. 1973).

See Matter of Roman Arturo Gomez, No. A041 424 512, 2011 WL 6965228 (B.I.A. 3

Dec. 21, 2011); Matter of Luis Manuel Germosen Nunez, No. A045 237 711, 2009 WL

2981799 (B.I.A. Aug. 28, 2009); Matter of Jospeh Pierre, No. A34 362 043, 2004 WL

5537104 (B.I.A. Jan. 31, 2004).

10
§ 3929(a)(1) (1991); see 24 I. &. N. Dec. at 33 n.1. Though the statute did not

require an intent to deprive the owner of the merchandise permanently, the BIA

found that retail theft under Pennsylvania law was a crime involving moral

turpitude because it was “reasonable to assume that the taking [was] with the

intention of retaining the merchandise permanently.” Jurado-Delgado, 24 I. & N.

Dec. at 34.

Notably, the BIA did not dispense with the requirement of an intent to

permanently deprive the owner of the property; rather, it held that “the nature

and circumstances surrounding” an offense under the Pennsylvania retail theft

law created a presumption of such intent. Id. at 33. That “nature and

circumstances” test was useful to the BIA where it was able to determine from

the face of the statute the type of property that the petitioner stole. Even where a

statute does not make clear the type of property at issue, the BIA has presumed

an intent to permanently deprive where it could determine the type of property

at issue from other sources in the record. Thus, in Matter of Grazley, the BIA found

it “reasonable to assume, since cash was taken, that [petitioner] took it with the

intention of retaining it permanently.” 14 I. & N. Dec. 330, 333 (B.I.A. 1973)

(emphasis added). But where, as here, the categorical approach prevents the BIA

11
from examining the property involved in the underlying offense, and the offense

statute does not indicate the type of property at issue, the BIA cannot determine

whether it is appropriate to presume an intent to permanently deprive.4

 Though not at issue in this appeal, the categorical approach plays an important 4

role in Obeya’s case, and it requires brief explication. When the government

alleges that a prior state conviction may serve as a predicate offense for removal

under the Immigration and Nationality Act (“INA”), “we generally employ a

‘categorical approach’ to determine whether the state offense is comparable to an

offense listed in the INA.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013); see also

Wala, 511 F.3d at 107. “Under the categorical approach, we consider the offense

generically, that is to say, we examine it in terms of how the law defines the

offense and not in terms of how an individual offender might have committed it

on a particular occasion.” United States v. Beardsley, 691 F.3d 252, 259 (2d Cir.

2012) (internal quotation marks omitted). We may look to portions of the

conviction record, under a modified categorical approach, when a statute

“comprises multiple, alternative versions of the crime,” i.e., is “divisible,” but

only to the extent necessary “to identify, from among several alternatives, the

crime of conviction.” Descamps v. United States, 570 U.S. 254, 262–64 (2013). In

determining whether an offense renders an alien removable, we focus only “on

the elements, rather than the facts, of a crime.” Id. at 263.

The BIA applied the categorical approach, unmodified, in Obeya II, looking

to the elements of the New York petit larceny statute to determine whether it was

“categorically a crime involving moral turpitude.” 26 I. & N. Dec. at 861. On

appeal, both parties agree that the categorical approach was proper.

New York Penal Law § 155.25 is not limited to any specific type of

property, and so the BIA’s presumption of an intent to deprive permanently is

not relevant here. By contrast, the Pennsylvania retail theft law at issue in JuradoDelgado specifically indicates the type of property that Jurado-Delgado

stole—“merchandise . . . offered for sale by any store or other retail mercantile

establishment.” 18 Pa. Cons. Stat. § 3929(a)(1) (1991); see 24 I. &. N. Dec. at 33 n.1.

Grazley is inapplicable; there, the BIA looked to “such facts as . . . appear[ed] from

the record of conviction”—long before the Supreme Court clarified in Descamps

12
This Circuit has long recognized that, under BIA precedent, “ordinarily, a

conviction for theft is considered to involve moral turpitude only when a

permanent taking is intended.” Wala, 511 F.3d at 106 (brackets omitted). We

noted in Wala that the BIA had written inconsistently on that subject over the

years, sometimes failing to distinguish between a permanent and a temporary

taking, and other times “suggest[ing] that whether this distinction actually exists

is an open question.” Id. at 106, n.3. But we ultimately concluded that the BIA

required an intended permanent taking for larceny to be considered a crime of

moral turpitude, specifically noting that although the BIA was “free to reconsider

its view of what types of larcenies amount to [crimes involving moral

turpitude],” it had not yet done so. Id.5

Now, in Diaz-Lizarraga, the BIA has done exactly that. It admitted as much

in Obeya II, where it frankly explained that the BIA had “long held that a theft

offense only involves moral turpitude if it is committed with the intent to

permanently deprive the owner of property.” 26 I. &. N. Dec. at 857. But it

that that was inappropriate—to find that Grazley stole a “change purse

containing money and stamps.” 14 I. & N. Dec. at 333.

5

 We followed that precedent in Obeya I, again reading then-existing BIA case law

to find moral turpitude only when an alien was convicted of an offense requiring

an intent to deprive a victim of property permanently.

13
“revisit[ed] [its] precedent decisions concerning the requisite intent for larceny

crimes in the context of a crime involving moral turpitude” in Diaz-Lizarraga. Id.

at 858. Given the BIA’s case law, this Court’s prior well-established 6

understanding of that case law, and the Board’s own descriptions of its

precedents in the opinion that adopted the new rule and in the very order of

which Obeya seeks review, we conclude that Diaz-Lizarraga expressly effected a

clear departure from longstanding BIA precedent.

Obeya’s reliance on that precedent—the third Lugo factor—follows

naturally from our determination that the BIA abandoned a decades-old rule in

Diaz-Lizarraga. “There can be little doubt 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.” INS v. St. Cyr, 533 U.S.

289, 322 (2001). So much so that “deportation is an integral part—indeed,

 It is of no consequence that the BIA, as the government argues, retrospectively 6

characterized its earlier test as intended to distinguish between “‘substantial and

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

other, mere de minimis takings in which the owner’s property rights [were]

compromised little, if at all.’” Resp. Br. at 31–32 (alteration in original), quoting

Diaz-Lizarraga, 26 I. & N. Dec. at 850. Whatever the purpose of the test, and

regardless of whether the new test is better suited to such a purpose, the BIA

admitted in both Diaz-Lizarraga and Obeya II that it was explicitly changing the

applicable legal rule.

14
sometimes the most important part—of the penalty that may be imposed on

noncitizen defendants who plead guilty to specified crimes.” Padilla v. Kentucky,

559 U.S. 356, 364 (2010) (footnote omitted).

In Lugo we remanded to the BIA to consider whether, in light of St. Cyr and

Padilla, a noncitizen “should automatically be assumed to have relied on existing

rules limiting deportation at the time she pled guilty.” 783 F.3d at 122. But in the

intervening years the BIA has failed to do so, and the government does not raise

that issue in this appeal, instead arguing against a finding of reliance based solely

on its position that Diaz-Lizarraga was not a departure from BIA precedent. We

therefore take this opportunity to clarify that, when conducting retroactivity

analysis in the immigration context, we look to whether it would have been

reasonable for a criminal defendant to rely on the immigration rules in effect at

the time that he or she entered a guilty plea. In doing so, we join the Seventh

Circuit’s considered holding that, in determining the retroactive effect of an

agency’s immigration rules, “the critical question is not whether a party actually

relied on the old law, but whether such reliance would have been reasonable.”

15
Velasquez-Garcia v. Holder, 760 F.3d 571, 582 (7th Cir. 2014). It was eminently 7

reasonable for Obeya, in entering a guilty plea to a charge of petit larceny, to rely

on seven decades of BIA precedent, reinforced by this Court in Wala, holding that

larceny offenses involve moral turpitude only when a permanent taking is

intended.8

As for the fifth Lugo factor—the government’s interest in applying the new

rule despite Obeya’s reliance on the old rule—the government asserts “a strong

interest in maintaining the uniformity of immigration law.” Resp. Br. at 35. But

the frequent changes in immigration law provisions, and the corresponding

judicial decisions limiting retroactive application of those provisions, see, e.g.,

Vartelas v. Holder, 566 U.S. 257 (2012); St. Cyr, 533 U.S. 289, demonstrate that, in

many circumstances, the immigration consequences of a conviction can depend

 We further note that while this Court held in Morris v. Holder that Padilla did not 7

disturb prior precedent that retroactive deportation is consistent with the Ex Post

Facto Clause, we came to that conclusion relying primarily on a Seventh Circuit

opinion decided just a few years before Velasquez-Garcia. See Morris v. Holder, 676

F.3d 309, 317 (2d Cir. 2012), citing Alvarado-Fonseca v. Holder, 631 F.3d 385 (7th

Cir. 2011); Lugo, 783 F.3d at 122. We see no inconsistency in our sister circuit’s

case law, or between Morris and our holding today. The Ex Post Facto Clause has

no bearing on Obeya’s appeal.

 That is particularly so where New York law permitted a petit larceny conviction 8

where a less-than-permanent taking was intended, as discussed infra.

16
on when a conviction occurred. “Uniformity,” under these circumstances, has

hardly been a consistent feature of immigration law.

In any event, the quixotic quest for illusory uniformity, given the BIA’s

demonstrated willingness to depart from its own precedent, does not outweigh

the significant burden posed by deportation. Insofar as the purpose of removal

for crimes involving moral turpitude is to deport those noncitizens who have

demonstrated a willingness to break certain laws reflecting on their character, it

would seem that the government has no compelling interest in removing

individuals for crimes that were not considered to reflect so negatively on their

character at the time the offenses were committed.

Because the Lugo factors weigh heavily in Obeya’s favor, we hold that the

BIA erred when it retroactively applied the Diaz-Lizarraga standard to his

removal proceedings. We next consider whether the New York petit larceny

statute describes a crime that categorically involves moral turpitude under the

old rule; that is, whether the offense requires an intent to deprive the owner of

property permanently. It does not.

“A person is guilty of petit larceny when he [or she] steals property.” N.Y.

Penal Law § 155.25. Stealing property requires an “intent to deprive another of

17
property or to appropriate the same to himself or a third person.” Id. § 155.05(1).

The deprivation of property under New York law requires doing so

“permanently or for so extended a period or under such circumstances that the

major portion of its economic value or benefit is lost,” or “dispos[ing] of the

property in such a manner or under such circumstances as to render it unlikely

that an owner will recover such property.” Id. § 155.00(3). The appropriation of

property involves the “exercise [of] control over it . . . permanently or for so

extended a period or under such circumstances as to acquire the major portion of

its economic value or benefit,” or “dispos[al] of the property for the benefit of

oneself or a third person.” Id. § 155.00(4).

Under New York law, then, neither the definition of “deprive” nor that of

“appropriate” is limited to a permanent deprivation. Both include deprivation

“for so extended a period of time or under such circumstances” as to destroy or

acquire “the major portion of its economic value or benefit.” Id. § 155.00(3), (4).

Further, the BIA acknowledged that appropriation of property through

“dispos[al] of the property for the benefit of onself or a third person,” id.

§ 155.00(4)(b), by its “plain language . . . does not require a showing that a

permanent deprivation or substantial erosion of property rights was intended.”

18
Obeya II, 26 I. & N. Dec. at 860. The BIA found that that method of appropriation

met the new Diaz-Lizarraga standard only because the New York Court of

Appeals has found that one appropriates property by “‘exert[ing] permanent or

virtually permanent control over the property taken.’” Id., quoting Medina, 18

N.Y.3d at 105 (emphasis added). Because a “virtually permanent” deprivation of

property must be something less than “permanent” deprivation, it is clear that,

whether we look to the plain meaning of the statute or to judicial interpretation, a

conviction for petit larceny in New York need not involve an intent to

permanently deprive another of property.9

Applying the categorical approach, and the BIA’s pre-Diaz-Lizarraga

standard for larceny crimes involving moral turpitude, we find that the BIA erred

when it found that Obeya’s larceny conviction constituted such a crime. We

therefore GRANT Obeya’s petition for review and REVERSE the order of the

 We note that it is an open question whether, when applying the categorical 9

approach, it is appropriate to look to judicial interpretations of statutes to

determine the reach of those statutes. Descamps, 570 U.S. at 275. Because New

York’s petit larceny statute does not require an intent of permanent deprivation

either on its face or under case law, we continue to reserve judgment on that

question.

19
BIA. The matter is REMANDED to the BIA for further proceedings not

inconsistent with this opinion.

20