Christian Ludwig Bokelmann, In the Courtroom, 1883.
Bibi Alli & Matthew Blaisdell
Criminal defendants must understand the consequences of their pleadings: which change over time.
A prior conviction can cause trigger removal (deportation) if it “categorically” matches certain categories of offenses under the Immigration and nationality Act (INA). Two of the broadest of these categories are crimes involving moral turpitude (CIMTs) and aggravated felonies.
We previously discussed a case in which we were able to demonstrate that a conviction under New York Penal Law §155.30 (grand larceny in the fourth degree) does not trigger the aggravated felony grounds for theft. Here we examine a case in which, after a very long appeals process, we were able to demonstrate that a 2004 conviction for New York Penal Law § 155.35 (grand larceny in the third degree) was not a CIMT (which generally includes theft, fraud, or violence) due to the notion of a ‘reliance interest’––a prominent factor relied upon by the U.S. Supreme Court in rejecting the government’s attempt to unwind DACA (which we reviewed here). To understand how this concept applies in an entirely different context, we’ll walk you through the evolving manner in which the courts have interpreted New York larceny convictions and how they have decided to apply these interpretations to convictions taking place at different points in time.
The two traditional approaches for interpreting New York larceny convictions:
There have been two main camps for interpreting New York larceny convictions. The one favored by the U.S. Department of Homeland Security (DHS) describes them as CIMTs by pointing to case law interpreting versions of the New York penal law dating back to 1928. At that time, the definitions of larceny in New York included an intent to steal or deprive another of their property, without any other language limiting the intent requirement.
The other camp, as articulated by the Board of Immigration Appeals (BIA) until 2016, defines larceny as “moral turpitude only when it is committed with the intent to deprive the owner of property permanently” (emphasis added). This is in line with NYPL § 155.35, the thrust of which requires stealing. The sections of the NYPL that define ‘stealing’ require the intent to deprive or to appropriate, and the sections that define ‘deprivation’ and ‘appropriation’ do not require them to be permanent. Thus, under this interpretation, it might still be larceny if you intended to give it back: just not the ‘turpitudinous’ variety.
The interpretation announced in 2016:
Our client, a legal permanent resident, was convicted under NYPL § 155.35 in 2004, at which time it seemed evident that, under the BIA’s understanding, the conviction was not a CIMT. However, the BIA broadened this definition on November 16, 2016 (in Matter of Diaz-Lizarraga) to include “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.” (emphasis added).
Under what is known as the categorical analysis, a state conviction will not trigger one of these grounds under the INA unless the state law and INA ground are a very tight match. What constitutes the categorical analysis is likewise a different topic for a different day. For now we’ll grossly oversimplify by stating that, for the NY larceny statute and CIMT ground to match, they have to require the same elements. There are two arguments that could be made in which our client’s 2004 conviction for NYPL § 155.35 could constitute a CIMT:
- As DHS argues, New York larceny convictions have been historically categorized as CIMTs, and the intent requirement has not changed in 100 years; thus Diaz-Lizarraga did not represent a significant change, and the conviction has always been a CIMT;
- Diaz-Lizarraga did represent a significant change, but that change could be applied to a conviction that predated it (i.e., convictions before 2016 would be interpreted under Diaz-Lizarraga, and not the law that existed at that time).
The federal court clarified its understanding and how it should be applied.
Our client was placed into removal proceedings for having committed a CIMT, and scheduled for a final hearing before the Immigration Judge in March 2018. The charge thus hinged on two considerations: 1) would the judge find that New York larceny in 2004 did not require a permanent taking, and was thus not at that time a CIMT; and 2) if not, would the judge would nevertheless apply the new understanding that includes a ‘substantial erosion’ of property rights?
Coincidentally, on March 8, 2018, the Second Circuit Court of Appeals in Obeya v. Sessions, rejected both scenarios. The court held that a conviction under NYPL § 155.25 (petit larceny) did not constitute a CIMT in cases that occurred before Diaz-Lizarraga because, while that case represented an appropriate update of the definition of larceny to reflect broader legal developments, this update did represent a clear change of the prior understanding of the definition.
Thus, when Mr. Obeya was convicted, the definition of the law that he relied on when pleading to the charge was a significantly different one (that NY larceny was not a CIMT) than existed at the time that he was charged by DHS (that NY larceny was a CIMT). After a detailed analysis, the court found that the understanding of the law that should be applied was the one that existed at the time of conviction, not as it existed at the time of the DHS charge, and a clear line was drawn: New York larceny convictions before November 16, 2016 did not constitute a CIMT.
The DHS challenges the federal court––by appealing an immigration judge.
At the time of our hearing, the Immigration Judge found that the holding from Obeya extended to NYPL § 155.35 because the focus of both petit larceny and 3rd degree grand larceny are the notion of ‘stealing’; neither requires a permanent taking, and thus neither are a CIMT. He terminated proceedings, and the DHS appealed.
Rather than pointing out any errors in the judge’s analysis, the DHS argued that the Second Circuit erred in determining that Diaz-Lizarraga represented a significant change in the law, because NY larceny has always constituted a CIMT. Thus, because the Second Circuit was wrong, the Immigration Judge should not have applied its decision in Obeya.
If you are an attorney reading this post, you may be scratching your head. While not expressly stating as much, the DHS was seeking to challenge clear precedent from the Second Circuit: not by direct appeal of Obeya to the U.S. Supreme Court or by requesting a rehearing of Obeya by the full panel of the Second Circuit, but by appealing the decision from an Immigration Judge in an entirely different case, who of course is bound to apply that Second Circuit precedent. Needless to say, though it took nearly two years, the BIA agreed and dismissed the DHS appeal without much comment. Convictions under either NYPL § 155.25 or NYPL § 155.35 that predate November 16, 2016 are not categorically CIMTs.
The notion of a ‘reliance interest’ applies to both criminal defendants and DACA recipients.
In Obeya, the Second Circuit determined that the new rule (the expanded definition of larceny in Diaz-Lizarraga) should not be applied retrospectively to (to older convictions). In so doing, the court emphasized the importance of the defendant’s reliance on the rule as it existed at that time when pleading to that conviction. Whether or not a particular state conviction is likely to trigger a severe immigration consequence might be the most important factor in deciding whether to plead to that conviction. Various courts, including the Third Circuit, have affirmed this analysis. Similarly, as noted above, the U.S. Supreme Court recently held in The Department of Homeland Security v. Regents of the University of California that reliance upon existing rules and regulations is a crucial factor to consider when an agency promulgates a new one. The courts are reaffirming the notions that, whether enforcing or updating the law, the government must take a fuller account of the effects these changes have to the people affected.