Argued: October 30, 2017
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 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
Richard Mark, Gibson, Dunn & Crutcher LLP, New York, NY,
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.
Wachtenheim, Immigrant Defense Project, New York, NY, for
Amicus Curiae Immigrant Defense Project.
Lynch and Carney, Circuit Judges, and Hellerstein, District
E. Lynch, Circuit Judge
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 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 Fed.Appx. 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 Fed.Appx. at 35.
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.
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
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.
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.'" Obeya I, 572
Fed.Appx. 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]."
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