Obeya v. Sessions

• Decision Date: 08 March 2018
• Docket Number: Docket No. 16-3922-ag,August Term, 2017
• Citation: 884 F.3d 442
• Parties: Clement OBEYA, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

884 F.3d 442

Clement OBEYA, Petitioner,
v.
Jefferson B. SESSIONS III, United States Attorney General, Respondent.

Docket No. 16-3922-ag
August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: October 30, 2017
Decided: March 8, 2018

884 F.3d 443

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

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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, 936 N.Y.S.2d 608, 960 N.E.2d 377 (2011). According to the BIA, the larceny statute's inclusion of "virtually permanent" deprivations of property brought it under Diaz–Lizarraga 's"substantial erosion" standard. Id. at 860–61. Obeya petitions this Court for review.

DISCUSSION

Obeya argues that the BIA erred by retroactively applying the rule announced in Diaz–Lizarraga to his case. It

884 F.3d 445

did.¹

Agencies may create new rules through adjudication, but the retroactive application of the resulting rules "must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles." SEC v. Chenery Corp. , 332 U.S. 194, 203, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947). We weigh the following factors to determine whether an agency may apply a new rule retroactively:

(1) whether the case is one of first impression, (2) whether the new rule presents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order places on a party, and (5) the statutory interest in applying a new rule despite 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 seriously at issue in the case before us," id. , and both favor Obeya. The intent necessary for a larceny crime to involve moral turpitude was resolved in "the Board's earliest days," and is not an issue of first impression for the BIA. Diaz–Lizarraga , 26 I. & N. Dec. at 849–50 (collecting cases speaking to that issue dating back to 1941). And the government concedes that the fourth factor, the burden of retroactive application, favors Obeya because "removal from the United States, with life-changing consequences," is a "massive" burden for any immigrant. Lugo , 783 F.3d at 121 ; Resp. Br. at 35. All the more so for Obeya, who arrived in this country at the age of 17 and has few if any close relations in Nigeria.

The heart of this case rests with the second and third Lugo factors: whether Diaz–Lizarraga was an abrupt departure from BIA precedent and whether Obeya relied on the previous rule when pleading guilty. The government argues that the BIA did not depart in Diaz–Lizarraga from its precedent regarding when larceny involves moral turpitude. Rather, the BIA was merely "revising its standard to reflect the modern definition of theft" without "distancing itself from the results reached under its prior standard." Resp. Br. at 33. If the BIA did not change its rule, Obeya'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 government's argument. In Diaz–Lizarraga , the BIA explained that "[f]rom the Board's earliest days [it] ha[s] 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." 26 I. & N. Dec. at 849 (emphasis in original). That rule was adopted during a period when most theft statutes "distinguish[ed] between substantial and reprehensible deprivations of an owner's property on the one hand and, on the other, mere de minimis takings." Id. at 850.

Since that time, most states have updated their 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 property "with purpose to deprive [the owner]

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thereof," and defines "deprive" to include takings of property "permanently or for so extended a period as to appropriate a major portion of [the property's] economic value." Am. Law Inst., Model Penal Code & Commentaries, pt. II, §§ 223.0(1), 223.2(1) (Official Draft & Revised Comments 1980); see Diaz–Lizarraga , 26 I. & N. Dec. at 851–52 & nn.4–8 (collecting statutes and cases from around the country "recogniz[ing] that many...