Introduction: Matter of Obeya, 26 I&N Dec. 856 (BIA 2016)

On November 16, 2016, the Board of Immigration Appeals (BIA) issued a decision titled the Matter of Obeya, 26 I&N Dec. 856 (BIA 2016) [PDF version]. In this decision, the Board held that petit larceny in violation of section 155.25 of the New York Penal Law is a categorical crime involving moral turpitude (CIMT). In reaching its decision, the Board followed a separate precedent decision issued on the same day in the Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) [PDF version]. Diaz-Lizarraga established the rule that a theft offense is categorically a CIMT 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.” Please see our full article on the Matter of Diaz-Lizarraga to learn more about the new precedent that is followed in the Matter of Obeya [see article].

In this article, we will examine the facts and procedural history of the Matter of Obeya, the Board’s analysis and decision, and the effect of the new precedent in conjunction with the Board’s decision in the Matter of Diaz-Lizarraga.

Facts and Procedural History: 26 I&N Dec. at 856-57

The respondent in the case, a native and citizen of Nigeria, was admitted to the United States as a lawful permanent resident (LPR) in 2004. In 2008, the respondent was convicted in violation of petit larceny in violation of section 155.25 of the New York Penal Law. The respondent was sentenced to 3 years of probation due to his conviction in violation of section 155.25 of the New York Penal Law. In 2011, the respondent violated his probation and was resentenced to a term of imprisonment of 10 months for violating his probation.

In 2008, the Department of Homeland Security (DHS) charged the respondent with removability under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) for having been convicted of a CIMT that was committed within 5 years of admission, for which a sentence of 1 year or longer may be imposed [see section]. It is important to note that the language of section 237(a)(2)(A)(i) refers to the sentence that may be imposed rather than the actual sentence imposed, thus rendering the fact that the respondent was only sentenced to probation for his conviction in violation of section 155.25 of the New York Penal Law irrelevant.

In 2012, the Immigration Judge (IJ) determined that the respondent was removable and ordered him removed to Nigeria. The Board subsequently dismissed the respondent’s appeal later that same year. The United States Court of Appeals for the Second Circuit granted the respondent’s petition for review and remanded the record to the Board for a determination of whether the respondent’s conviction for petit larceny in violation of section 155.25 of the New York Penal Law was a CIMT.

Issue: 26 I&N Dec. at 857

The question before the Board was whether a violation of the New York petit larceny statute found in section 155.25 of the New York Penal Law was a CIMT. Specifically, the question arose because, as we will see, the New York petit larceny statute has a scienter (knowledge of wrongdoing) requirement “that requires less than an intent to permanently deprive the owner of the right to his or her property.” This was an issue because there existed Board precedent suggesting that the intent to permanently deprive the owner of the right to his or her property is a requirement for a theft offense to be a CIMT.

Analysis and Decision: 26 I&N Dec. at 857-61

The Board begins by explaining that, in accordance with the Matter of Leal, 26 I&N Dec. 20, 25 (BIA 2012) [PDF version], and the Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553 (BIA 2011) [PDF version], “moral turpitude” refers to conduct that is “inherently base, vile, depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Furthermore, under the Matter of Silva-Trevino, 26 I&N Dec. 826, 828 n.2, 833-34 (BIA 2016) [PDF version] [see article], the reprehensible act must have been committed with some form of scienter in order for it to involve moral turpitude.

In the Matter of Grazley, 14 I&N Dec. 330, 333 (BIA 1973) [PDF version], the Board held that a theft offense only involves moral turpitude if it is committed with the intent to permanently deprive the owner of property. This decision followed a long line of Board precedent decisions dating back to the 1940s that held the same.

The DHS argued that the Board should abandon its traditional distinction between temporary and permanent takings in determining whether a theft or larceny offense involves moral turpitude. The DHS based its argument on the fact that the distinction is unnecessary and impractical in light of the way contemporary theft and larceny statutes are written, and that the Board’s traditional distinction between temporary and permanent takings have caused confusion among federal courts. Conversely, the respondent argued that the Board should follow seven decades of precedent in standing by its distinction between temporary and permanent takings in finding that a conviction under section 155.25 of the New York Penal Law is not a CIMT. In order to understand the disagreement as applied to the instant case, we must examine the New York Penal Law.

First, the Board excerpted the pertinent part of the statute of conviction, section 155.25 of the New York Penal Law:

A person is guilty of petit larceny when he steals property.

The Board then cited to the New York Penal Law’s definition of “larceny” found in section 155.05(1):

A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.

Finally, the Board cited to section 155.00(3), which defines the term “deprive” for purpose of the New York Penal Law:

To “deprive” another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.

Following the statute and the definitions in the New York Penal Law of “larceny” and “deprive,” it is clearly possible under the New York law that a person may be convicted in violation of section 155.25 without it being proven that his or her intent in committing the larceny was to permanently deprive the owner of his or her property. Instead, it is possible a conviction under the statute may occur if the property was taken with the intent to deprive its owner of the property only “for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him [or her].” Furthermore, the property may be taken with the ultimate intent of disposing of it such that the owner may not be able to recover it. Therefore, if the Board’s longstanding precedent that a theft offense is only a CIMT if it involves the intent to permanently deprive the owner of his or her property were to stand, it would appear that the respondent would prevail in arguing that his petit larceny conviction was not a CIMT. It then becomes clear why the DHS argued that the Board should abandon its distinction between “temporary” and “permanent” takings in determining whether a theft offense is a CIMT.

First, the Board held that it was not precluded from applying its precedent decision in the Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) [see article], which was published as a companion to the instant case. In its unpublished decision to remand the issue to the Board, the Second Circuit cited to its published decision in Wala v. Mukasey, 511 F.3d 102, 106 (2d Cir. 2007) [PDF version], wherein it recognized the Board’s distinction between temporary and permanent takings in the Matter of Grazley, 14 I&N Dec. at 333. However, in neither Wala nor the remand in the instant case did the Second Circuit find that the Board’s distinction between temporary and permanent takings was necessary. In Wala, the Second Circuit cited to the Board’s decision in the Matter of Jurado, 24 I&N Dec. 29, 33 (BIA 2006) [PDF version], where the Board suggested that the distinction may be unnecessary. The Second Circuit held explicitly that the Board may reconsider its view of what types of theft and larceny offenses are CIMTs. The Board did just that in the Matter of Diaz-Lizarraga.

In the Matter of Diaz-Lizarraga, 26 I&N Dec. at 852-53, the Board held that a theft or larceny offense may be a categorical CIMT even when it does not require proof of the intent for a literally permanent taking. The Board set a new standard at 26 I&N Dec. at 854, finding that a theft offense may be a categorical CIMT if it “embodies a mainstream, contemporary understanding of theft, which requires an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.”

In Diaz-Lizarraga, the Board decided to change its standard for evaluating theft statutes to determine whether they are CIMTs in light of how theft statutes are written today compared to seven decades ago when the Board settled on the distinction between temporary and permanent takings. Today, the definition of “deprive” for the purpose of theft and larceny statutes tracks generally the Model Penal Code’s definition, which has been adopted in most states [see article for detailed analysis]. The Board explains that section 155.00(3) of the New York Penal Code largely tracks the Model Penal Code formulation used by many other states. However, the Board notes a key distinction between the New York Penal Code and the Model Penal Code, and this difference is found in section 155.00(4) of the New York Penal Law:

To “appropriate” property of another to oneself or a third person means (a) to exercise control over it, or to aid a third person to exercise 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 (b) to dispose of the property for the benefit of oneself or a third person.

The key point here is that it is possible to violate New York’s petit larceny statute through the intent to “appropriate” property, whereas the Model Penal Code does not contain such a provision. Notably, Arizona, which hosted the theft statute at issue in Diaz-Lizarraga, does not have a provision that matches New York’s appropriation provision.

The Board explained that the New York Penal Law’s definition of “appropriate” in section 155.00(4)(a) is in fact quite similar to its definition of “deprive” in section 155.00(3)(a), such that the Board’s holding in the companion case, Diaz-Lizarraga, would be applicable. However, the Board notes that the New York Penal Law’s definition of “appropriate” in section 155.00(4)(b) is less similar to section 155.00(3)(b), which is modeled after the Model Penal Code and nearly identical to Arizona’s statutes. The Board explains that the difference in the definition of “appropriate” in section 155.00(4)(b) is that it does not “address the duration or extent of the requisite intended loss to the owner.” Therefore, the plain language of this provision does not require a showing that a permanent deprivation or substantial erosion of property rights was intended in order to secure a conviction.

The respondent urged the Board to adopt a reading of section 155.00(4)(b) that would preclude his conviction from being a categorical CIMT. However, the Board held that this reading of section 155.00(4)(b) was, in fact, foreclosed by New York law. This is because under the precedent of New York’s highest court found in People v. Medina, 960 N.E.2d 377, 382 (NY 2011), a conviction for larceny requires proof of an intent “to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof” (Medina quoting People v. Jennings, 504 N.E.2d 1079, 1086 (NY 1986)). This means that, although the plain language of section 155.00(4)(b) suggests that it is possible to be convicted for larceny in New York without the showing of the requisite intent to render the conviction a categorical CIMT under Diaz-Lizarraga, the precedent of New York’s highest court makes clear that such showing, is in fact, necessary to secure a conviction. The Board found that this precedent prevented it from reading the statute as allowing a conviction for petit larceny to be obtained without the showing that the perpetrator intended to permanently deprive or substantially erode the property rights of the owner.

Although the respondent brought to bear cases to support such a reading of the statute, the Board found the cases cited to by the respondent to be unpersuasive. For example, the respondent cited to how Connecticut courts have interpreted similar statutes as allowing for larceny convictions without the intent to cause a permanent deprivation of property to the owner. The Board explained, however, that it is the State court’s interpretation of the statutes that control, not the language of the statutes themselves.

Accordingly, the Board applied its holding in the Matter of Diaz-Lizarraga and concluded that the respondent’s offense was categorically a CIMT. This is because based on the wording of the statute and the interpretation of the statute by New York courts, proof of the intent to permanently or virtually permanently deprive an owner of his or her property was required for the conviction. For these reasons, the Board dismissed the respondent’s appeal.

Conclusion

Taken in tandem with the Matter of Diaz-Lizarraga, the Matter of Obeya is a significant decision in interpreting whether a theft/larceny offense is a categorical CIMT. Obeya represents the first case outside of Diaz-Lizarraga where the Board applied its new standards in evaluating such offenses in the CIMT context. The case also highlights the importance of examining how State courts interpret an otherwise ambiguous statute. Had the New York Courts held that it was possible to procure a larceny conviction without proof of intent to permanently deprive or virtually permanently deprive an owner of his or her property, the Board would have likely found that the respondent’s conviction was not a categorical CIMT, as may well be the result reached by the courts in a different state with similarly worded statutes to New York. For those in New York, however, the Board’s decision makes clear that a petit larceny conviction will be considered a categorical CIMT with severe immigration consequences.

If an alien is facing a criminal matter, or is charged as removable, he or she should consult with an experienced immigration attorney immediately for a full evaluation of the situation.