OBEYA

Cite as 26 I&N Dec. 856 (BIA 2016) Interim Decision #3878

Matter of Clement OBEYA, Respondent

Decided November 16, 2016

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Petit larceny in violation of section 155.25 of the New York Penal Law, 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, is categorically a crime

involving moral turpitude. Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016),

followed.

FOR RESPONDENT: Richard W. Mark, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Brian J. Counihan, Assistant

Chief Counsel

BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.

PAULEY, Board Member:

In a decision dated March 13, 2012, an Immigration Judge denied the

respondent’s motion to terminate proceedings and ordered him removed

from the United States. We dismissed the respondent’s appeal on August 7,

2012. The United States Court of Appeals for the Second Circuit granted

the respondent’s petition for review and remanded the case for us to

determine, in the first instance, whether the respondent’s conviction for

petit larceny is for a crime involving moral turpitude. 1 Obeya v. Holder,

572 F. App’x 34 (2d Cir. 2014). The respondent’s appeal will be

dismissed.

I. FACTUAL AND PROCEDUAL HISTORY

The respondent is a native and citizen of Nigeria who was admitted to

the United States on August 12, 2004, as a lawful permanent resident. In

2008 he was convicted in the County Court of Albany, New York, of petit

larceny in violation of section 155.25 of the New York Penal Law, for

1

On December 9, 2013, we denied the respondent’s untimely motion to reopen

proceedings. The denial of the respondent’s motion was not referenced in the Second

Circuit’s remand order, and the issue is not now before us.

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which he was sentenced to 3 years of probation. After a violation of his

probation in 2011, he was resentenced to imprisonment for 10 months.

In November 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, 8 U.S.C. § 1227(a)(2)(A)(i) (2006), as

an alien who has been convicted of a crime involving moral turpitude that

was committed within 5 years of admission, for which a sentence of 1 year

or longer may be imposed. The Immigration Judge determined that the

respondent is removable and ordered him removed to Nigeria. 2

II. ISSUE

The issue in this case is whether a violation of the New York petit

larceny statute, which has a scienter element that requires less than an intent

to permanently deprive the owner of the right to his or her property, is a

crime involving moral turpitude. We review this question of law de novo.

8 C.F.R. § 1003.1(d)(3)(ii) (2016).

III. ANALYSIS

Under section 237(a)(2)(A)(i) of the Act, an alien is removable if he or

she has been convicted of a crime involving moral turpitude committed

within 5 years after the date of admission, for which a sentence of 1 year or

longer may be imposed. We have stated that moral turpitude refers

generally to conduct that is “inherently base, vile, or depraved, and contrary

to the accepted rules of morality and the duties owed between persons or to

society in general.” Matter of Leal, 26 I&N Dec. 20, 25 (BIA 2012)

(quoting Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553 (BIA 2011)).

Further, a finding of moral turpitude requires that a perpetrator have

committed the reprehensible act with some form of scienter. Matter of

Silva-Trevino, 26 I&N Dec. 826, 828 n.2, 833−34 (BIA 2016) (citing

Matter of Silva-Trevino, 24 I&N Dec. 687, 706 & n.5 (A.G. 2015)). We

have also long held that a theft offense only involves moral turpitude if it is

committed with the intent to permanently deprive the owner of property.

See, e.g., Matter of Grazley, 14 I&N Dec. 330, 333 (BIA 1973).

In its brief on remand, the DHS contends that we should abandon the

distinction between temporary and permanent takings when determining

whether a theft or larceny offense involves moral turpitude. According to

2

The Immigration Judge did not clearly err in finding that the respondent’s relevant

date of admission is August 12, 2004, and that his conviction is based on conduct that

occurred within 5 years after that date.

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the DHS, such a distinction is unnecessary and impractical and has created

confusion among the Federal courts of appeals because there are myriad

larceny charges encompassed by the more than 50 State penal laws

enforced in the country. In his reply brief, the respondent argues that we

should conclude, consistent with more than seven decades of precedent,

that only larceny offenses requiring an intent to permanently deprive the

owner of property should constitute crimes involving moral turpitude.

The respondent’s conviction was under section 155.25 of the New York

Penal Law, which provides in pertinent part:

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

Other sections of the New York Penal Law further describe the offense

of petit larceny. Section 155.05(1) defines the term “larceny” as follows:

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.

In turn, section 155.00(3) defines the term “deprive” as follows:

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.

As an initial matter, we conclude that we are not precluded here from

applying Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), which is

published as a companion to this case and revisits our precedent decisions

concerning the requisite intent for larceny crimes in the context of a crime

involving moral turpitude. The Second Circuit’s remand order in this case

stated that “under [Board] precedent larceny constitutes a [crime involving

moral turpitude] ‘“only when a permanent taking is intended,”’” quoting its

prior decision in Wala v. Mukasey, 511 F.3d 102, 106 (2d Cir. 2007)

(quoting Matter of Grazley, 14 I&N Dec. at 333). Obeya, 572 F. App’x at

35. Nonetheless, the court did not decide, either in its published disposition

in Wala or its unpublished remand order in this case, whether the

distinction between temporary and permanent takings is a necessary one in

the context of a crime involving moral turpitude. Instead, in Wala the

Second Circuit noted that the Board “recently suggested that whether this

distinction [between a permanent and temporary taking] actually exists is

an open question.” Wala, 511 F.3d at 106 (citing Matter of Jurado, 24 I&N

Dec. 29, 33 (BIA 2006)). The court further acknowledged that the Board is

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“free to reconsider its view of what types of larcenies amount to [crimes

involving moral turpitude]” and stated that it expressed “no position . . . on

whether any such change in position would be entitled to or receive

deference.” Id.

In Matter of Diaz-Lizarraga, 26 I&N Dec. at 852–53, we determined

that a theft offense may be found to categorically involve moral turpitude

even if it does not require the accused to intend a literally permanent taking.

We held, instead, that an offense qualifies as a categorical crime involving

moral turpitude 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.” Id. at 854. We concluded that Arizona’s shoplifting

statute, the relevant portion of which closely tracks the Model Penal Code,

embodies this mainstream, contemporary understanding of theft and

accordingly defines a categorical crime involving moral turpitude. 3

The New York larceny statute, which requires an intent to “deprive,”

largely tracks the Model Penal Code formulation. However, it differs from

many other State statutes because it may also be violated with an intent to

“appropriate” property. Section 155.00(4) of the New York Penal Law

provides:

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.

3

The Model Penal Code definition of theft and the Arizona shoplifting statute at section

13-1805(A) of the Arizona Revised Statutes require that the accused have an intent to

deprive an owner of property. Section 223.0(1) of the Model Penal Code defines the

term “deprive” as

(a) to withhold property of another permanently or for so extended a period as to

appropriate a major portion of its economic value, or with intent to restore only

upon payment of reward or other compensation; or (b) to dispose of the property so

as to make it unlikely that the owner will recover it.

In addition to Arizona, 18 other States have adopted the Model Penal Code’s definition of

“deprive.” Five other States, including New York and Connecticut, essentially track the

Model Penal Code, omitting solely the mental state regarding the intent to restore the

property only upon payment of a reward or some other compensation. See, e.g., Conn.

Gen. Stat. § 53a-118(a)(3) (West 2016); N.Y. Penal Law § 155.00(3) (McKinney 2016);

see also Matter of Diaz-Lizarraga, 26 I&N Dec. at 851–52 & nn.4–8 (collecting statutes

and cases).

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On its face, New York’s definition of the term “appropriate” in section

155.00(4)(a) appears very similar to the definition of “deprive” in section

155.00(3)(a). Both definitions require that “the major portion of [the

property’s] economic value or benefit” is either lost to the owner because

the offender deprived him or her of it, or acquired by the offender through

appropriation. Section 155.00(4)(a) would therefore likely require a

showing of a permanent deprivation or substantial erosion of property

rights, as articulated in Matter of Diaz-Lizarraga.

However, in defining the term “appropriate,” section 155.00(4)(b)—

which requires disposal of the property for the benefit of the accused or a

third person—does not address the duration or extent of the requisite

intended loss to the owner. Therefore the plain language of this section,

standing alone, does not require a showing that a permanent deprivation or

substantial erosion of property rights was intended. We nevertheless

conclude that this reading of the statute, which the respondent urges on

appeal, is foreclosed by New York’s case law.

Notwithstanding the language of section 155.00(4)(b), New York’s

highest court has determined that 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.” People v. Medina, 960 N.E.2d

377, 382 (N.Y. 2011) (emphases omitted) (quoting People v. Jennings, 504

N.E.2d 1079, 1086 (N.Y. 1986)) (internal quotation marks omitted); see

also, e.g., People v. Parker, 466 N.Y.S.2d 700, 702 (N.Y. App. Div. 1983)

(finding no larcenous intent where there was no evidence of intent to

permanently or virtually permanently appropriate the property or deprive

the owner of the use of the property, “as distinguished from a ‘borrowing’

type of intent to obtain temporary use or cause temporary loss” (emphasis

omitted) (quoting Arnold D. Hechtman, Practice Commentaries

(McKinney’s Cons. Laws of N.Y., Book 39, Penal Law, § 160.00, at

195))); People v. Guzman, 416 N.Y.S.2d 23, 25–26 (N.Y. App. Div. 1979)

(“The people are required to prove that there was a specific intent to steal,

and the act must contemplate such a permanent appropriation of the

property. A temporary taking will not establish the larcenous intent.”).

Although the respondent cites several cases in support of his argument

that a violator can be convicted of New York larceny without a showing

that he or she intended a permanent or virtually permanent deprivation,

none of them is persuasive. One citation is to the dissent in Jennings,

which, while forcefully articulating the respondent’s position, is not

controlling here because it is directly opposed to the majority opinion in

that binding case. People v. Jennings, 504 N.E.2d at 1095 (Simons, J.,

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dissenting in part). Two other citations are to cases that construe

Connecticut’s larceny statute—not New York’s. Patel v. Holder, 707 F.3d

77, 80 (1st Cir. 2013) (addressing sections 53a-118(a)(4) and 53a-119(1) of

the Connecticut General Statutes); State v. Wieler, 660 A.2d 740, 741–42

(Conn. 1995) (same). We acknowledge that the text of the relevant

Connecticut statutes is similar to that of the New York statutes. However,

the State courts’ interpretations of their statutes—not the language of those

statutes—are dispositive here.

Unlike Connecticut courts, whose case law permits a larceny conviction

without the intent to cause a permanent deprivation, New York courts have

long held that larceny requires proof of intent to permanently or virtually

permanently appropriate property or deprive the owner of the use of

property.

IV. CONCLUSION

Applying the holding in Matter of Diaz-Lizarraga to the facts of this

case, we conclude that the respondent’s offense—which requires proof of

the intent to permanently or virtually permanently deprive an owner of

property—satisfies the requirement of an intent to deprive the owner of his

property either permanently or under such circumstances that the owner’s

property rights are substantially eroded. It is therefore categorically a crime

involving moral turpitude. The Immigration Judge properly determined

that the respondent is removable under section 237(a)(2)(A)(i) of the Act

for having been convicted, within 5 years of the date of his admission, of

petit larceny in violation of section 155.25 of the New York Penal Law, for

which a sentence of 1 year or longer may be imposed. Accordingly, the

respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

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