Francisco-Lopez v. Attorney Gen. U.S.

• Decision Date: 15 May 2020
• Docket Number: No. 19-2700,19-2700
• Parties: Amilcar Antonio FRANCISCO-LOPEZ, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

970 F.3d 431

Amilcar Antonio FRANCISCO-LOPEZ, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

No. 19-2700

United States Court of Appeals, Third Circuit.

Argued February 3, 2020

Opinion Filed: May 15, 2020

Lisa J. Kasdan (Argued), Marcia Kasdan, Law Office of Marcia S. Kasdan, 127 Main Street, 1st Floor, Hackensack, NJ 07601, Counsel for Petitioner

Jeffrey R. Meyer, Craig Alan Newell, Jr. (Argued), United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: SHWARTZ, SCIRICA, and RENDELL, Circuit Judges

OPINION

RENDELL, Circuit Judge:

In 2012, Amilcar Francisco Lopez (Francisco), a lawful permanent resident of the United States, pleaded guilty to attempted second degree grand larceny in New York state. More than five years later, Francisco was charged with removability on the grounds that his guilty plea constituted a conviction for a crime involving moral turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Francisco challenged his removal but two Immigration Judges (IJs) and eventually the Board of Immigration Appeals (BIA) denied his challenges. The BIA ruled that it would retroactively apply the new standard for theft-related CIMTs that it had promulgated in Matter of Diaz-Lizarraga , 26 I. & N. Dec. 847 (B.I.A. 2016), to Francisco's case and that, under that standard, Francisco's 2012 conviction rendered him removable.

Francisco now petitions for review of the BIA's order. We grant review and join several other circuits in ruling that the BIA should not have retroactively applied Diaz-Lizarraga . See Monteon-Camargo v. Barr , 918 F.3d 423 (5th Cir. 2019) ; Garcia-Martinez v. Sessions , 886 F.3d 1291 (9th Cir. 2018) ; Obeya v. Sessions , 884 F.3d 442 (2d Cir. 2018) ; Lucio-Rayos v. Sessions , 875 F.3d 573 (10th Cir. 2017). We will vacate the BIA's order and remand to the BIA for further proceedings.

I

Francisco is a citizen of Guatemala who was accorded lawful permanent resident status in the United States in 1989. In 2012, Francisco pleaded guilty to a charge of attempted grand larceny in the second degree in violation of New York Penal Law § 155.40(2)(b). The charging document shows that Francisco obtained a stolen laptop. Francisco then contacted the laptop's owner and demanded that the owner reimburse him for the amount of money Francisco had paid for the laptop. During this exchange, Francisco sent the laptop's owner sexually explicit pictures that Francisco had found on the laptop. The owner then contacted the police and Francisco was arrested and charged with attempted second degree grand larceny. After pleading guilty, Francisco was sentenced to five years of probation. An order of protection for the victim was placed against him. Francisco completed his probation in 2017.

In 2018, Francisco returned to Newark Liberty International Airport from a trip abroad and sought admission to the United States as a returning lawful permanent resident. Instead, Francisco was classified as an arriving alien and an applicant for admission. He was deemed inadmissible to the United States under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a CIMT and was detained by the Department of Homeland Security Immigration and Customs Enforcement (DHS-ICE) at the Elizabeth Detention Center in Elizabeth, New Jersey. Francisco was served with a Notice to Appear alleging that he was subject to removal as an alien who had been convicted of CIMT based on his 2012 conviction for attempted grand larceny.

Francisco filed a motion to terminate the removal proceedings, arguing that his 2012 conviction was not a CIMT. An IJ denied the motion to terminate in an oral decision. After the denial, Francisco filed an application for discretionary relief of cancellation of removal as a lawful permanent resident. A second IJ orally denied Francisco's application for discretionary relief. Francisco appealed both decisions to the BIA.

The BIA dismissed Francisco's appeal and adopted and affirmed the IJs’ rulings. It first ruled that Francisco was removable for having committed a CIMT. The BIA decided that its 2016 precedent from Matter of Diaz-Lizarraga , 26 I. & N. Dec. 847, in which the BIA promulgated a new, broader standard for determining whether a larceny offense constituted a categorical CIMT, should be applied retroactively to Francisco's 2012 conviction. In Diaz-Lizarraga , the BIA noted that "[f]rom the Board's earliest days we have 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." Id. at 849 (emphasis in original). But, based on the BIA's analysis of developments in criminal law since adopting that standard, the BIA decided to "update [its] existing jurisprudence," id. at 852, to require that "a theft offense is a crime involving moral turpitude if it involves an intent to deprive the owner of his property either permanently or under circumstances where the owner's property rights are substantially eroded ," id. at 853 (emphasis added).

In Francisco's case, under the expanded Diaz-Lizarraga standard, the BIA held that New York's second degree grand larceny statute "defines a categorical CIMT because it requires the accused to take or withhold property with the intent to permanently or virtually permanently appropriate it or deprive the rightful owner of its use." App. 7 (citing Matter of Obeya , 26 I. & N. Dec. 856, 858– 61 (B.I.A. 2016) ; Diaz-Lizarraga , 26 I. & N. Dec. at 847, 854 ) (emphasis added). Thus, the BIA ruled that Francisco was removable.

The BIA also upheld the second IJ's denial of discretionary relief and rejected Francisco's claim that the IJ's actions had violated his due process rights.

Francisco then timely filed this appeal.

II¹

A. Crime Involving Moral Turpitude

Under the Immigration and Nationality Act (INA), an alien who commits a "crime involving moral turpitude" is "inadmissible," 8 U.S.C. § 1182(a)(2)(A)(i)(I), and can be removed, § 1227(a)(2)(A)(i). Although the INA does not define the phrase "moral turpitude," the BIA defines it generally as "conduct that is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed other persons, either individually or to society in general." Partyka v. Att'y Gen. , 417 F.3d 408, 413 (3d Cir. 2005) (quoting Knapik v. Ashcroft , 384 F.3d 84, 89 (3d Cir. 2004) ).

When, as in this case, the government seeks to remove a noncitizen under the INA on the basis of a prior state conviction for a CIMT, we, as well as the BIA, "generally employ a ‘categorical approach’ to determine whether the state offense" qualifies as a CIMT. Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; see Ildefonso-Candelario v. Att'y Gen. , 866 F.3d 102, 104 (3d Cir. 2017). Under this approach, we analyze the statute pursuant to which the noncitizen was convicted "to ascertain the least culpable conduct necessary to sustain [a] conviction under the statute." Ildefonso-Candelario , 866 F.3d at 104 (quoting Jean-Louis v. Att'y Gen. , 582 F.3d 462, 465–66 (3d Cir. 2009) (alteration in original)). "As a general rule, a criminal statute is determined to define a crime as categorically involving ‘moral turpitude only if all of the conduct [the statute] prohibits is turpitudinous.’ " Javier v. Att'y Gen. , 826 F.3d 127, 130 (3d Cir. 2016) (quoting Partyka , 417 F.3d at 411 ) (alteration in original). In the course of this inquiry, we focus only "on the elements, rather than the facts, of a crime." Descamps v. United States , 570 U.S. 254, 263, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; see also Jean-Louis , 582 F.3d at 465 (quoting Knapik , 384 F.3d at 88 ).

B. Retroactivity of Diaz-Lizarraga

In Francisco's case, the BIA retroactively applied the expanded intent requirement it adopted in Diaz-Lizarraga , determining that New York second degree grand larceny qualified since the intent element under New York law aligns with the CIMT intent requirement that "the owner's property rights are substantially eroded." App. 6.² This was not the first case in which it did so. In the BIA's published decision in Matter of Obeya , the BIA had retroactively applied Diaz-Lizarraga where Obeya had been convicted of New York petit larceny. See Matter of Obeya , 26 I. & N. Dec. 856 (B.I.A. 2016), rev'd by Obeya v. Sessions , 884 F.3d 442 (2d Cir. 2018).³ The BIA here reasoned that because "larceny under New York law defines a categorical CIMT because it requires the accused to take or withhold property with the intent to permanently or virtually permanently appropriate it or deprive the rightful owner of its use," it fell within its new expanded CIMT definition. App. at 7 (citing Obeya , 26 I. & N. Dec. at 858-61 ).⁴ The BIA, "[a]pplying the reasoning of Obeya ," held in Francisco's case that N.Y. Penal Law § 155.40(2) "also defines a categorical CIMT" and that Francisco was therefore removable. Id.

Retroactivity is not favored in the law. This applies with full force to the BIA's retroactive application of new law. See, e.g. , Velasquez-Garcia v. Holder , 760 F.3d 571, 579 (7th Cir. 2014) (citing Bowen v. Georgetown Univ. Hosp ., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) ). The Supreme Court has explained in the context of retroactive administrative rulemaking that our suspicion of retroactivity:

is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.

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