19-4111 Ferreiras v. Garland 1 IN THE 2 United States Court of Appeals 3 For the Second Circuit 4 ________ 5 AUGUST TERM, 2020 6 7 ARGUED: NOVEMBER 23, 2020 8 DECIDED: FEBRUARY 17, 2022 9 10 No. 19-4111 11 12 ANDY PABEL FERREIRAS VELOZ, AKA ANDY FERREIRAS, 13 Petitioner-Appellant, 14 15 v. 16 17 MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, 18 Respondent-Appellee. 19 ________ 20 21 On Petition for Review of a Final Decision of the Board of Immigration Appeals. 22 23 ________ 24 25 Before: CALABRESI and SULLIVAN, Circuit Judges. * 26 ________ *Judge Robert A. Katzmann, who was a member of the original panel in this case, died while the New York Court of Appeals was considering whether to grant certification. This appeal is decided by the two remaining members of the panel, who are in agreement. See 2d Cir. IOP E(b). 19-4111 Ferreiras v. Garland 1 Petitioner Andy Ferreiras sought review of a final order of removal from 2 the Board of Immigration Appeals (BIA). The BIA found Petitioner removable as 3 a noncitizen convicted of two or more crimes involving moral turpitude. It did so 4 based on its determination that New York petit larceny constitutes such a crime. 5 This Court certified to the New York Court of Appeals the question of whether 6 an intent to “appropriate” property under New York Penal Law § 155.00(4)(b) 7 requires an intent to deprive the owner of his or her property either permanently 8 or under circumstances where the owner’s property rights are substantially 9 eroded. In so certifying, we explained that, if the New York Court of Appeals 10 declined to accept certification, this Court would likely answer the question in 11 the affirmative. The New York Court of Appeals declined, and so this Court 12 decides that, as a matter of New York law, New York petit larceny requires an 13 intent to deprive the owner of his or her property either permanently or under 14 circumstances where the owner’s property rights are substantially eroded. As 15 such, it is categorically a crime involving moral turpitude, and the petition for 16 review is denied. 17 1 19-4111 Ferreiras v. Garland 1 ADAM AMIR & NOAH A. LEVINE, Wilmer Cutler Pickering Hale and Dorr 2 LLP, New York, NY for Petitioner-Appellant. 3 ETHAN P. DAVIS, Acting Assistant Attorney General – Civil Division 4 (Cindy Ferrier, Assistant Director, Sarai M. Aldana, Trial Attorney, 5 Office of Immigration Litigation, Civil Division, Department of 6 Justice, on the brief), Washington, DC for Respondent-Appellee. 7 8 CALABRESI, Circuit Judge: 9 The issue in this case is whether New York petit larceny, N.Y. Penal Law 10 § 155.25, is categorically a “crime involving moral turpitude” (CIMT) such that a 11 noncitizen twice convicted of that crime is deportable. See 8 U.S.C. 12 § 1227(a)(2)(A)(ii). Answering that question requires us to define with certainty 13 how broad the elements of New York petit larceny are. See, e.g., Moncrieffe v. 14 …
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