OBEYA

Cite as 

 (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, 

 (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,

 (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, 

(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.

(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, 

 (BIA 2012)
(quoting Matter of Ruiz-Lopez, 

 (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, 

, 828 n.2, 833−34 (BIA 2016) (citing
Matter of Silva-Trevino, 

, 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, 

 (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, 

 (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, 

 (2d Cir. 2007)
(quoting Matter of Grazley, 

). Obeya, 

. 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, 

 (citing Matter of Jurado, 

 (BIA 2006)). The court further acknowledged that the Board is

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 (BIA 2016)                                Interim Decision #3878




“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.” 

    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); 

(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, 

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

, 1086 (N.Y. 1986)) (internal quotation marks omitted); see
also, e.g., People v. Parker, 

 (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, 

, 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, 

 (1st Cir. 2013) (addressing sections 53a-118(a)(4) and 53a-119(1) of
the Connecticut General Statutes); State v. Wieler, 

, 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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