Veloz v. Garland
| Decision Date | 07 June 2021 |
| Docket Number | No. 19-4111,August Term, 2020,19-4111 |
| Citation | 999 F.3d 798 |
| Parties | Andy Pabel FERREIRAS VELOZ, aka Andy Ferreiras, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Adam Amir & Noah A. Levine, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Petitioner.
Ethan P. Davis, Acting Assistant Attorney General – Civil Division (Cindy S. Ferrier, Assistant Director, Sarai M. Aldana, Trial Attorney, Office of Immigration Litigation, Civil Division, Department of Justice), Washington, D.C., for Respondent-Appellee.
Before: Calabresi, Katzmann, and Sullivan Circuit Judges.
This case requires us to determine whether the intent provision of New York's larceny statute is a categorical match with the Board of Immigration Appeals ("BIA") definition of the intent required for crimes involving moral turpitude ("CIMTs") under 8 U.S.C. § 1227(a)(2)(A)(ii). Petitioner Andy Ferreiras seeks review of a BIA order finding him removable based on convictions for three CIMTs. Ferreiras argues that none of his crimes of conviction, all three of which were for petit larceny, are CIMTs. He contends that the New York statute encompasses a broader set of larcenous intents than the BIA's definition of CIMTs.
Since 2016, the BIA has defined a theft crime as a CIMT when it includes the intent to deprive owners of their property "either permanently or under circumstances where the owner's property rights are substantially eroded." Matter of Diaz-Lizarraga , 26 I. & N. Dec. 847, 853 (BIA 2016). Using the categorical approach in Petitioner Ferreiras's case, the BIA ruled that the intent requirement for larceny in New York Penal Law ("NYPL") is a categorical match with the BIA's CIMT definition.
Ferreiras argues that this was error. Under New York law, larceny requires the intent either to "deprive" someone of their property or to "appropriate" the property of another. NYPL § 155.05(1). Ferreiras maintains that the definition of "appropriate" in the statute makes the definition of larceny under New York law broader than the BIA's definition of a CIMT, and that therefore these definitions are not a categorical match. Ferreiras points out that NYPL § 155.00(4)(b) includes under the term "appropriate" the intent "to dispose of the property for the benefit of oneself or a third person." He contends that because this provision does not include a temporal limitation, the statute makes criminal even minimal takings that are not covered by the BIA's definition of a CIMT.
We do not doubt that the Diaz-Lizarraga rule applies to Ferreiras. We have, however, left open the question of whether New York petit larceny constitutes a CIMT under that standard. See Obeya v. Sessions , 884 F.3d 442, 445 n.1 (2d Cir. 2018). The BIA has said that it does. See Matter of Obeya , 26 I & N Dec. 856 (BIA 2016). But we owe no deference to the BIA's reading of New York law. See Gill v. I.N.S. , 420 F.3d 82, 89 (2d Cir. 2005). The issue before us is therefore: what does the New York statute require, and does reading the statute or the relevant New York cases make us sufficiently sure of that requirement?
Since examination of that statute and those cases leaves us uncertain, we believe it is prudent to ask the New York State Court of Appeals ("NYCA") how it would interpret § 155.00(4)(b). We therefore certify to the NYCA the question whether an intent to "appropriate" property under New York Penal Law § 155.00(4)(b) requires 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, which, as noted earlier, is how the BIA defines a theft involving moral turpitude.
Andy Ferreiras is a native and citizen of the Dominican Republic who became a lawful permanent resident of the United States in 2011. Before he was detained by the Department of Homeland Security ("DHS"), he worked in the restaurant industry and as a barber in the Bronx. In 2017, Ferreiras pleaded guilty to three separate charges of petit larceny under NYPL § 155.25. On July 3, 2019, an Immigration Judge applied the categorical approach, and found him removable as a non-citizen convicted of two or more CIMTs pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). Ferreiras appealed to the BIA, arguing that the intent provision of New York's larceny statute encompasses takings intended to neither permanently nor substantially erode property rights, making it broader than the federal definition. See NYPL § 155.00(4)(b). The BIA found Ferreiras's argument precluded by Matter of Diaz-Lizarraga and Matter of Obeya .
Ferreiras timely petitioned for review before our Court.1 He argues again that New York petit larceny is not a CIMT under the categorical approach because its plain language encompasses thefts with less culpable intent than the Diaz-Lizarraga rule requires.
Our jurisdiction over Ferreiras's petition for review is limited to "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(D). Whether New York's petit larceny statute qualifies as a CIMT is a question of law. Accordingly, we review de novo. See Gill , 420 F.3d at 89.
Finding a categorical match is a tricky business. We must determine whether state law permits convictions for crimes that would not be CIMTs under the appropriate federal definition. See Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (); Matthews v. Barr , 927 F.3d 606, 616-617 (2d Cir. 2019) (). We therefore begin with the federal definition. In that respect, we pay due deference to the BIA's delegated authority to define a CIMT, and its expertise in doing so. See Gill 420 F.3d at 89 (). As recited above, the BIA defines a theft as a CIMT where 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." Diaz-Lizarraga , 26 I. & N. Dec. at 853.
But we do not owe the BIA deference when it interprets state law, because it is not an expert in state law.2 See Mendez v. Mukasey , 547 F.3d 345, 346 (2d Cir. 2008) (); Rodriguez v. Gonzales , 451 F.3d 60, 63 (2d Cir. 2006). Instead, we give full deference to the state. See e.g. , Gill , 420 F.3d at 90 ().
This core principle of federalism is especially important in situations like this one, where the need to ascertain state law is required by federal law, and where litigants who are incarcerated or have been deported may be able to seek a reopening of their case even many years later should our decision as to state law prove to be wrong. Consider what might happen if we found that the statute is a match, and a few years later the NYCA defined it as clearly not a match. What would happen if a petitioner then sought habeas or similar relief? Certification allows us to avoid precisely such potential problems.
In order to apply the categorical approach, we must "identify the minimum criminal conduct necessary for conviction under a particular statute by ‘looking only to the statutory definitions—i.e., the elements—of the offense, and not to the particular underlying facts.’ " Hylton v. Sessions , 897 F.3d 57, 60 (2d Cir. 2018) (quoting United States v. Hill , 890 F.3d 51, 55 (2d Cir. 2018) ). Our inquiry therefore begins with the statute and its plain language.
Under New York penal law, "[a] person is guilty of petit larceny when he steals property." NYPL § 155.25. Stealing property requires either the intent to "deprive another of property," or the intent "to appropriate the same to himself or to a third person." NYPL § 155.05(1). To "deprive" another of property is defined as "(a) to withhold it ... permanently or for so extended a period ... that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner ... as to render it unlikely that an owner will recover such property." NYPL § 155.00(3). To "appropriate" property means "(a) to exercise control over it ... permanently or for so extended a period ... 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." NYPL § 155.00(4).
Thus, NYPL § 155.00(4)(a) clearly coheres with the federal requirement for a CIMT. The crux of Ferreiras's argument is, however, that § 155.00(4)(b) ’s intent "to dispose of the property for the benefit of oneself or a third person," is a less culpable mental state than the Diaz-Lizarraga definition. He argues that this intent could be as minimal as joyriding, or stealing something with the intent of putting it back the next day.
Ferreiras contends, moreover, that the intent requirement in the larceny statute is so manifestly broader than the Diaz-Lizarraga rule that we need not, and indeed cannot, look any further. In making this argument, he relies principally on Hylton, where we held that the BIA erred in looking beyond the clear language of a statute "when the statutory language itself, rather than the application of legal imagination to that language, creates the realistic probability that a state would apply the statute to conduct beyond the generic definition." 897 F.3d at 63 (citations omitted). We are however, not persuaded that the meaning of this statute is so plain that we can simply rely on its language.
What the statute makes criminal depends on the meaning of "d...
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Veloz v. Garland
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