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Obeya v. Sessions

United States Court of Appeals, Second Circuit

March 8, 2018

Clement Obeya, Petitioner,
v.
Jefferson B. Sessions III, United States Attorney General, Respondent.

          Argued: October 30, 2017

         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 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.

          Before Lynch and Carney, Circuit Judges, and Hellerstein, District Judge. [*]

          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 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.

         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.

         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.'" 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]." 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 ...


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