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Ob eya v. Sessi ons UNITED STATES COURTOF APPEAL S F O R T H E S E C O N D C IR C U IT August Term, 2017 (Argued: Octobe r 30, 2017 De cided: March 8, 2018)

Docket No. 16-3922- ag

C L E M E N T O B E Y A , Petitioner,

— v. — J E F F E R S O N B. S E S S I O N S III, United States Attorney Gener al, Respondent

.

B e f o r e : L Y N C H and C A R N E Y , Circuit Judges , and H E L L E R S T E I N , District Judge. *

Clement Obeya, a lawful permanent re sident of the United States, was convicted of petit l arceny unde r Ne w York law. The government sought to remove Ob eya for his conviction, treating itas a “crime involving moral Judge Alvin K . Hellerstein, of the United States D istrict Court for the Souther n * District of New York, sitting by designation.turpitude.” The Im mig ration Judge and Board of Immi gration Appeals found

that Obeya was re movable based on h is convicti on, but this Court re manded due to the agency’s failure to apply BIA precedent holding that larceny involves moral turpitude only when it is comm itt ed with the intent to deprive the owner of prope rty permanen tly. On remand, the BIA again found Obeya removable, holding thathis offense involved moralturpitude by applyi ng a new rule, announced in another case that same day, ex panding the types of larcen y that qual ify as such crimes. Obeya ch all enges the BIA’s retroactive applicati on of that rule to his case. We GRANT review and REVERSE the BIA’s order.

R I C H A R D M A R K, Gibson, Dunn & Cr utcher LLP, New Yor k, NY, for Petitioner

. R A C H E L L. B R O W N I N G , Trial At torney (C lai re L. Wor kman, Senior Litigati on Couns el, on the brief ), Office of Imm igration Liti gation, for Chad A. Readler , Acting Assistant At torney General, Civil Divi sion, United States Dep artment of Justice, Washington, DC, for Respondent. Andrew Wach tenheim, Im mig rant De fense Project, New York, NY, for Amicus Curiae Immigrant Defense Project

.

G E R A R D E. L Y N C H , Circuit Judge : Clement Obeya is a lawful permanent res ident of the United States. In 2008, he was convicted of pe tit larceny under New York law. The gover nment init iated removal proceedings against Obeya, ch arging that his convicti on constituted a “crim e involvi ng moral turpitude.” The Immi gration Judge (“IJ”) found that Obeya was r emovable based onhis convicti on and the Boar d of

2Imm igration Appeals (“BIA”) affi rmed, but this Court held that the IJ had failed

to apply BI A prece dent holding that l arceny involves moral turpitude under 8 U.S.C. § 1227(a)(2) (A)(i) only when commi tted with the intent to deprive the owner of p roper ty permanently. See Obeya v. Holder , 572 F. App’x 34 (2d C ir. 2014) (“ Obeya I”), granting pet. for re view of Matter of Obeya , No. A055 579 757 (B.I.A. Aug. 7, 2012). We therefor e re manded to the BIA “to determine in the first instance whether Obeya’s c onvicti on under [ N.Y. Penal Law § 155.25]” rende red him removable. Obeya I , 572 F. App’x at 35. On re mand, the BIA agai n found Obe ya removable. See Matter of Obeya , 26 I. & N. Dec. 856 (B.I.A. 2016) (“ Obeya II”), aff’g No. A055 579 757 (Immi g. Ct. Batavia Mar. 13, 2012). But the BIA did not rely in Obeya II on the pre cedent that this Court had identified i n Obeya I ; rather , the BIA found Obeya r emovable under a ne w 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 prese nt petiti on to this Court, Obe ya challenges the BIA’s retr oactive appli cation of that rule to hi s case. For the reas ons se t forth below, we again GRANT review and REVERSE the BIA’s lat est orde r.

3BACKGROUND

Obeya, a native and citizen of Nigeria, was admit ted into the United States in 2004 as a lawfulpermanen t resident. Four year s later, in the County Cour t of Albany, New York, he pled guil ty to petit larceny in violation of Section 155.25 of the New Yor k Penal Law. That offense carr ies a maxim um penalty of one year’s imprisonment. See N.Y. Penal Law §§ 70.15(1), 155.25. The court sen tenced Ob eya to three ye ars’ pr obation, and in 2011 sentence d him t o ten months’ imprisonment for viol ating the terms of his probation. Shortly after Ob eya’s conviction, the Depar tment of Homeland Security charged h im w ith being removable under 8 U.S .C. § 1227(a)(2)(A)(i) as an alien convicted of a crime invol ving moral turpitude, commi tted within five years of admission to the United States, for which a court may i mpose a sen tence of one year or longer. The IJ held that Obeya was re movable because “ any type of larceny or the ft offense . . . constitutes a crime invol ving moral turpitude.” A.R. 787–88 (emphasis added). The BIA dismi ssed Ob eya’s appe al. He then petitioned this Court for review, which we grante d because “under BIA pre cedent larcen y constitutes a [crime involving moral turpitude] ‘only when a permanent taking is intended.’”

4Obeya I

, 572 F. App’x at 35, quoti ng Wala v. Mukasey, 511 F.3d 102, 106 (2d Cir. 2007) (Sotomayor, J. ) (emphasis added). Bec ause the IJ had misstated the law, we remanded the case to the BIA “to determine in the first instance whethe r Obe ya’s conviction under [N.Y. Penal Law] § 155.25 constitutes a [crime invol ving moral turpitude].” Id. On re mand, the BIA agai n dismi ssed Ob eya’s appe al, 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 dee med theft crimes to involve moralturpitude where ther e is “an intent to deprive the owne r of his [or her] p roper ty either permanen tly orunder circumstances wh ere the owner ’s proper ty rights are subs tantial ly eroded.” Obeya II , 26 I. & N. Dec. at 859, quoti ng Diaz-Lizarraga , 26 I. & N. Dec. at 854 (emphasis added) . The BIA noted that although “the plai n language” of New York’s petit l arceny s tatute “does not require a showing that a permanent de privation or substantial erosion of proper ty rights was intended,” id. at 860, the New York C ourt of Appeals “has determined that a conviction for larceny requires pr oof of an intent ‘to exer t permanen t or virtuall y permanen t control over the pr operty taken,’” id. , quoting People v. Medina , 18 N.Y.3d 98, 105 (2011). According to the BIA, the larceny

5statute’s inclu sion of “virtual ly permanent” depr ivati ons of pr operty br ought it

under Diaz-Lizarraga ’s “substantial erosion” standard. Id. at 860–61. Obeya petiti ons this Court for review. DISCUSSION Obeya ar gues that the BIA erre d by re troactively appl ying the rule announced in Diaz-Lizarraga to his case. It did. 1 Agencies may create n ew rules through adjudication, but the retroactive applicati on of the re sulting rules “must be balanced against the mischief of producing a res ult whi ch is contrary to a statutory design or to legal and equit able principles.” SEC v. Chenery Corp. , 332 U.S. 194, 203 (1947). We weigh the following factors to deter mine whether an age ncy may apply a new rule retroactively:

(1) whether the case is one of first impression, (2) whether the new r ule prese nts an abr upt departure from well-establi shed pr actice or merely attempts to fi ll a void in an unsettl ed are a of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degr ee of the b urden

Because we hold that the BIA erred by r etroactively applying its new standard 1 to Obeya, we do no t reach his alternative arguments that the BIA exce eded the scope of this C ourt’s decr etal languag e in Obeya I and that petit l arceny unde r New York law is not a crime invol ving moral turpitude even under the DiazLizarraga standard. 6which a retroactive orde r places on a par ty, and (5) the statutory interest in applyi ng a new rule des pite 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 se riously at i ssue in the case befor e us,” id. , and both favor Obeya. The intent nec essar y for a larceny cr ime to involve moralturpitude was resolved in “the Board’s earliest days,” and is not an issue of first impression for the B IA. Diaz-Lizarraga , 26 I. & N. Dec. at 849–50 (collecti ng cases s peaking to that i ssue dating back to 1941). And the gover nment concedes that the fourth factor, the b urden of r etroactive applicati on, favors Obeya b ecause “r emoval from the United States, with life-changing consequences ,” is a “massive” burden for any imm igrant. Lugo , 783 F.3d at 121; Resp. Br. at 35. All the more so for O beya, who ar rived in this country at the age of 17 and has fe w if any close relations in Nigeria. The hear t of this case res ts with the second and third Lugo factors: whethe r Diaz-Lizarraga was an abr upt departure fr om BIA precedent and whe ther Ob eya relied on the pr evious rule when pleading guil ty. The government ar gues that the BIA did not depart in Diaz-Lizarraga from its precede nt regar ding when larceny involves moral turpitude. Rather, the BIA was mere ly “revising i ts

7standard to re flect the modern definition of theft” wi thout “distanci ng itself from

the res ults reached under its prior standard.” Resp . Br. at 33. If the BIA di d not change its rule, Obe ya’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 gover nment’s argument. In Diaz-Lizarraga , the BIA explained that “[f]rom the Board’s e arliest days [it] ha[s] held that a theft offense categoricallyinvolves moral turpitude if—and only i f—it i s commi tted with the intent to permanentlydeprive an owne r of pr operty.” 26 I. & N. De c. at 849 (emphasis in original ). That rule was adopted during a period whenmost theft statutes “disti nguish[ed] betwee n substantial and repre hensible depr ivati ons of

an owner ’s prope rty on the one hand and, on the other, mere de minim is takings.” Id. at 850. Since that tim e, most states have updated the ir 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 prope rty “with purpose to depr ive [the owner] the reof,” and d efines “dep rive” to include takings of pro perty “permanen tly or for so ex tended a pe riod as to appropr iate a maj or por tion of [the prope rty’s] economic value.” Am. Law I nst., Model Penal Code &

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

1980); see Diaz-Lizarraga , 26 I. & N. Dec. at 851–52 & nn.4–8 (collecting statut es and cases from around the countr y “recogniz[ing] that many temporary takings

are as c ulpable as permanent one s”). The BIA explained in Diaz-Lizarraga that it s “case law ha[d] not kept pace with [those] de velopments” and that it accordingl y decided to “update [its] existing ju rispruden ce,” holding that “a theft offense is a crime invol ving moral turpitude if i t invol ves an intent to depr ive the owner of his [or her ] prope rty either per manently orunder circumstances wh ere the owner’s proper ty rights are subs tantial ly eroded.” 26 I. & N. De c. at 852–53 (emphasis added). The BIA’s own words in Diaz-Lizarraga trace this transfor mati on for us. For decades, the BIA appli ed one r ule: that a l arceny off ense constitutes a crime involving moral turpitude only when the larcen y statute in q uestion required, as had the common law, an i ntent to deprive the victim of property per manently. But in Diaz-Lizarraga , acknowledging that m ost states had ex panded on the common l aw definiti on of larceny after the promulgati on of the Model Penal Code to cove r a br oader r ange of conduct, the BIA decided to “update” its rule and to expand its definition of moralturpitude to cover conduct that better

9reflects the moder n definiti on of larceny. The BIA thus ex plici tly acknowl edged

that Diaz-Lizarraga created a n ew rule, differen t from the one that it acknowledged it had foll owed “[f]rom the Boar d’s earliest days.” Id. at 849. The govern ment cites several BIA and circuit court opi nions decided befor e Diaz-Lizarraga to argue that “crimes of theft and larceny . . . [had alre ady been ] presumed to invol ve moral turpitude,” Resp. Br. at 30 (emphasis added), or 2 that the BIA had previously determined that “a convicti on under [ N.Y. Penal Law] § 155.25 was categorically a crim e involvi ng moral turpitude.” Id. at 34, n.7. 3 But we have re viewed those case s and find them unconvincing. For ex ample, i n Matter of Jurado-Delgado , 24 I. & N. Dec. 29 (B.I.A. 2006), the BIA examined a convicti on under a Pe nnsylvania law defining “retail theft” as “tak[ing] possession of . . . any mer chandise displayed, held, stored or offere d for sale by any store or other retail mercantil e establishment.” 18 Pa. Cons. S tat.

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); see24 I. &. N. Dec. at 33 n.1. Though the s tatute di d not

require an intent to deprive the owne r of the mer chandise per manently, the BIA found that retail theft under Pennsylvania law was a crim e involvi ng moral turpitude because it was “reas onable to assume that the taking [was] with the intention of retaining the merch andise per manently.” Jurado-Delgado , 24 I. & N. Dec. at 34. Notably, the BIA did not di spens e with the requirement of an intent to permanen tly deprive the owner of the proper ty; rather, it held that “the nature and circumstances surr ounding” an offense under the Pennsylvania retail theft law created a pre sumption of such intent. Id. at 33. That “nature and circumstances” test was useful to the BIA where it was able to deter mine from the face of the s tatute the type of proper ty that the petiti oner s tole. Even where a statute does not make clear the type of pr operty at issue, the BIA has pr esumed an intent to permanently deprive wher e it coul d determine the type of pr operty at issue from other sour ces in the re cord. Thus, in Matter of Grazley, the BIA found it “reasonable to assume, since cash was taken , that [petiti oner] took it with the intention of retaining i t permanently.” 14 I. & N. Dec. 330, 333 (B.I.A. 1973) (emphasis added). But wher e, as he re, the c ategorical approach pre vents the BIA

11from examining the proper ty invol ved in the underlying offense , and the offen se

statute does not indicate the type of proper ty at i ssue, the BIA cannot dete rmine whether it i s approp riate to presume an intent to per manently deprive. 4 Though not at issue in thi s appeal, the categor ical approach plays an im portant 4 role in Obeya’s cas e, and it requires brief e xplicati on. When the government all eges that a pr ior state conviction m ay serve as a pre dicate offense for removal under the Imm igration and National ity Act (“INA”), “we gener all y employ a ‘categorical approach’ to determine whethe r the state offe nse is comparable to an offense li sted in the INA.” Moncrieffe v. Holder , 569 U.S. 184, 190 (2013); see also Wala , 511 F.3d at 107. “Under the categor ical approach, we consider the offense gener ically, that is to say, we examine itin terms of how the law defines the offense and not in terms of how an individu al offender might have commi tted it on a particular occasion.” United States v. Beardsley, 691 F.3d 252, 259 (2d Cir. 2012) (internal quot ation marks omi tted). We may look t o portions of the conviction record, under a modifi ed categorical approach, whe n a statute “comprises multi ple, alternative versions of the cr ime,” i.e. , is “divi sible,” but only to the extent nece ssary “to identify, from among several alternatives, the crime of convicti on.” Descamps v. United States , 570 U.S. 254, 262–64 (2013). In determining whether an offe nse r ender s an alien removable, we focus on ly “on the elements, rathe r than the facts, of a cr ime.” Id. at 263. The BIA appli ed the categor ical approach, unmodifi ed, in Obeya II , looking to the elements of the Ne w York petit larceny statute to determine whether it was “categoricallya crime invol ving moral turpitude.” 26 I. & N. Dec. at 861. On appeal, both parties agre e that the categorical approach was pr oper. New York Pen al Law § 155.25 i s not lim ited to any specific ty pe of proper ty, and so the BIA’s pres umpti on of an intent to deprive per manently i s not relevant her e. By contrast, the Pen nsylvania retailtheft law at i ssue in JuradoDelgado specificall y indicat es the type ofproper ty that Jurado-Delgado stole—“merchandise . . . offe red for sale by any store or other retail mercantil e establishment.” 18 Pa. Cons. Stat. § 3929(a)(1) (1991); see24 I. &. N. Dec. at 33 n.1. Grazleyis inappli cable; there , the BIA looked to “such facts as . . . appear [ed] from the rec ord of conviction”—long before the Supre me Court clarified in Descamps 12This Circuit has long recognized that, under BIA prece dent, “ordinarily, a

conviction for theft is considered to involve moral tu rpitude only when a permanen t taki ng is intended.” Wala , 511 F.3d at 106 (brackets omitted). We noted in Wala that the BIA had writt en inconsistently on that subject over the years, s ometim es failing t o distingu ish betweena permanen t and a temporary taking, and other tim es “sugges t[ing] that whether this disti nction actual ly exists is an open question.” Id. at 106, n.3. But we ult imat ely concluded that the BIA required an intended pe rmanent taking for larceny to be considere d a crime of moral turpitude, specificall y noting that al though the BIA was “free to r econsider its vi ew of what types of larcen ies amount to [crim es involving m oral turpitude],” it

had not yet done so. Id. 5 Now, in Diaz-Lizarraga , the BIA has done e xactly that. I t admi tted as much in Obeya II

, where it frankly explai ned that the BIA had “long held that a theft offense only invol ves moral turpitude if i t is comm itt ed with the intent to permanen tly deprive the owner of p roper ty.” 26 I. &. N. Dec. at 857. But it that that was i nappropr iate—to find that Grazley stole a “change purse containing m oney and stamps.” 14 I. & N. De c. at 333. We followed that preceden t in Obeya I , again reading then-ex isti ng BIA case law 5 to find moral turpitude only when an alien was convicted of an offense requiring an intent to deprive a victimof prope rty permanen tly. 13“revisit[ed] [its] precede nt decisions concer ning the requisit e intent for larceny

crimes in the context of a crime involvi ng moral turpitude” in Diaz-Lizarraga

. Id. at 858. Giv en the BIA’s case law, thi s Cour t’s prior well-established

6 unders tanding of that case law, and the Board’s own des criptions of its prece dents in the opinion that adopted the new rule and in the ver y order of which Obeya se eks re view, we conclude that Diaz-Lizarraga expr essly effec ted a clear depar ture from longstanding BIA preceden t. Obeya’s r eliance on that precede nt—the third Lugo factor—follows naturally from our determinati on that the BIA abandoned a de cades-old rule in Diaz-Lizarraga . “There c an be littl e doubt that, as a gener al mat ter, alien defendan ts considering whethe r to enter into a plea agreement are acutely aware of the imm igration consequences of their con victi ons.” INS v. St. Cyr , 533 U.S. 289, 322 (2001). So much so that “deportation is an integral part—indeed,

It i s of no cons equence that the BIA, as the gover nment argues, r etrospe ctively 6 character ized its earlier test as intended to distingui sh be tween “‘subs tantialand repr ehens ible deprivations of an owner’s p roper ty on the one han d and, on the other, mere de minim is taki ngs in which the owner’s proper ty rights [were] compromised li ttl e, if at all .’” Resp. Br. at 31–32 (alteration in original ), quoting Diaz-Lizarraga , 26 I. & N. Dec. at 850. Whatever the purposeof the test, and regar dless of whethe r the ne w test is better suited to such a purpos e, the BIA admit ted in both Diaz-Lizarraga and Obeya II that it was explicitl y changing the applicable l egal rule. 14sometim es the most important part—of the penalty that may be im posed on

noncitizen defendants who plead guilty t o specified crimes.” Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (footnote omitted). In Lugo we remande d to the BIA to consider whether, in li ght of St. Cyrand Padilla , a noncitizen “should autom atical ly be assumed to have re li ed on ex isti ng rules lim iti ng depor tati on at the time she pled guil ty.” 783 F.3d at 122. But in the intervening years the BIA has failed to do so, and the governmen t does not raise that issue in thi s appeal, instead arguing against a findi ng of reliance bas ed solely on its positi on that Diaz-Lizarraga was not a departure from BIA precede nt. We theref ore take this oppor tunityto clarify that, when conducting retroac tivi ty analysis in the immi gration context, we look to whether it would have been

reaso nable for a cr iminal defendant to rely on the immi gration rules in effect at the time that he or she e ntered a guilty plea. I n doing so, we join the Seven th Circuit’s considered h olding that, in determining the re troactive effect of an agency’s immi gration rules, “the critical q uestion is not whether a par ty actual ly relied on the old law, but whether such r eliance would have been r easonab le.”

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

reaso nable for Ob eya, in entering a guiltyplea to a charge of pe titlarceny, to rely

on seve n decades of BIA precede nt, reinforce d by this Court in Wala , holding that larceny offen ses involve moral turpitu de only when a per manent taking i s intended. 8 As for the fifth Lugo factor—the gover nment’s interest in applying the new rule despite Obe ya’s reliance on the old rule—the gove rnment asse rts “a stron g interest in maintaining the uniformity of imm igration l aw.” Resp. Br. at 35. But the fre quent changes in imm igration l aw provisions, and the cor resp onding judici al decisions li miting retroactive applicati on of those pr ovisions, see, e.g. , Vartelas v. Holder

, 566 U.S. 257 (2012); St. Cyr , 533 U.S. 289, demonstrate that, in many circumstances, the imm igration consequences of a conviction can depen d

We further note that while thi s Cour t held in Morris v. Holderthat Padilla did not 7 disturb prior pr ecede nt that retroactive depor tati on is consistent with the Ex Post Facto Clause, we came to that conclusion relying prim arily on a Seventh C ircuit opinion decided just a few years be fore 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 n o inconsistency in our sister circuit’s case law, or be tween Morris and our holding today. The Ex Post Facto Clause has no bear ing on Obeya’s appe al. That is particul arly so where New York law per mit ted a petit l arceny con victi on 8 where a less-than-per manent taking was i ntended, as discussed infra

. 16on when a con victi on occurr ed. “Uniformity,” under these circumstances , has

hardly beena consistent feature of imm igration l aw. In any event, the quixoti c quest for ill usory uniformity, gi ven the BIA’s demonstrated will ingness to depar t from its own preceden t, does not outweigh the significant burden posed b y deportation. Insofar as the p urpose o f removal for crimes involving m oral turpitude i s to deport those noncitizens who have demonstrated a will ingness to br eak cer tain l aws reflecting on their char acter, it would seem that the government has no c ompelling interest in removing indivi duals for crimes that were no t considered to r eflect so negatively on their character at the tim e the offe nses we re committ ed. Because the Lugo factors weigh heavily in Obeya’s favor, we hold that the BIA erred wh en it retroactively appli ed the Diaz-Lizarraga standard to his removal procee dings. We nex t consider whethe r the Ne w York petit larceny statute describes a crime that categoricall y involves moral turpitude under the old rule; that i s, whether the offens e re qui res anintent to deprive the owner of proper ty permanently. It does not. “A pers on is guil ty of petit l arceny whe n he [or she] s teals proper ty.” N.Y. Penal Law § 155.25. Stealing property requires an “intent to depr ive another of

17proper ty or to appropr iate the same to him self or a third per son.” Id. § 155.05(1).

The depr ivati on of prope rty under N ew York law requires doing so “permanen tly or for so ex tended a pe riod or under such circumstances that the major portion of its economi c value or bene fit i s lost,” or “dispos[ing] of the proper ty in such a manner or unde r such circumstances as to rende r it unli kely that an owner will recover such p roper ty.” Id. § 155.00(3). The appro priation of proper ty invol ves the “e xer cise [of] control over it . . . per manently or for so extende d a period or unde r such circumstances as to acqui re the major por tion of its economic val ue or be nefit,” or “dispos[al] of the prope rty for the b enefit of

onese lf or a third person .” Id. § 155.00(4). Under N ew York law, then, neither the definition of “deprive” nor that of “appropr iate” is l imi ted to a permanent de privation. Both i nclude deprivation “for so e xtended a p eriod of time or under suchcircumstances” as to destr oy or acqui re “the major por tion of it s economic value or bene fit.” Id. § 155.00(3), (4). Further, the BIA acknowledged that appropriation of proper ty through “dispos[al] of the prope rty for the b enefit of onself or a third pe rson,” id. § 155.00(4)(b), by its “plain langu age . . . does n ot require a showing that a permanen t deprivation or substantial erosion of prope rty rights was intended.”

18Obeya II

, 26 I. & N. Dec. at 860. The BIA found that that method of appropriation met the new Diaz-Lizarraga standard only becaus e the Ne w York Cour t of Appeals has found that one ap propr iates proper ty by “‘exer t[ing] permanent or virtually permanentcontrol over the p roper ty taken.’” Id. , quoting Medina , 18 N.Y.3d at 105 (emphasis added). Bec ause a “virtuall y permanen t” deprivation of proper ty must be something l ess than “p ermanent” de privation, i t is clear that, whether we look to the plai n meaning of the statute or to judici al i nterpr etation, a conviction for petit l arceny in Ne w York nee d not involve an intent to permanen tly deprive another of pr operty. 9 Applying the categor ical approach, and the BIA’s pre- Diaz-Lizarraga standard for larceny crimes involving m oral turpitude, we find that the BIA err ed when it found that Obeya’s larcen y convicti on constituted such a crime. We theref ore GRANT Obeya’s petiti on for r eview and REVERSE the orde r of the

We note that it is an open question whether, whenapplying the categorical 9 approach, it is appropr iate to l ook to judi cial interpr etations of statutes to determine the r each of those statutes. Descamps , 570 U.S. at 275. Because N ew York’s petit larceny statute does not r equire an intent of permanent depr ivati on either on its face or under cas e law, we continue to reser ve judgment on that question. 19BIA. The matt er is REMANDED to the BIA for further p rocee dings not

inconsistent with this opinion.

20