PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 19-2700 AMILCAR ANTONIO FRANCISCO-LOPEZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent On Petition for Review of an Order of the Board of Immigration Appeals (Agency No.: A041-811-480) Immigration Judge: Nelson Vargas Padilla Argued February 3, 2020 Before: SHWARTZ, SCIRICA, and RENDELL, Circuit Judges (Opinion Filed: May 15, 2020) Lisa J. Kasdan (Argued) Marcia Kasdan Law Office of Marcia S. Kasdan 127 Main Street 1st Floor Hackensack, NJ 07601 Counsel for Petitioner Jeffrey R. Meyer Craig Alan Newell, Jr. (Argued) United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent O P I N I O N RENDELL, Circuit Judge: In 2012, Amilcar Francisco Lopez (Francisco), a lawful permanent resident of the United States, pleaded guilty to attempted second degree grand larceny in New York state. 2 More than five years later, Francisco was charged with removability on the grounds that his guilty plea constituted a conviction for a crime involving moral turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Francisco challenged his removal but two Immigration Judges (IJs) and eventually the Board of Immigration Appeals (BIA) denied his challenges. The BIA ruled that it would retroactively apply the new standard for theft-related CIMTs that it had promulgated in Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (B.I.A. 2016), to Francisco’s case and that, under that standard, Francisco’s 2012 conviction rendered him removable. Francisco now petitions for review of the BIA’s order. We grant review and join several other circuits in ruling that the BIA should not have retroactively applied Diaz-Lizarraga. See Monteon-Camargo v. Barr, 918 F.3d 423 (5th Cir. 2019); Garcia-Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018); Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018); Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017). We will vacate the BIA’s order and remand to the BIA for further proceedings. I Francisco is a citizen of Guatemala who was accorded lawful permanent resident status in the United States in 1989. In 2012, Francisco pleaded guilty to a charge of attempted grand larceny in the second degree in violation of New York Penal Law § 155.40(2)(b). The charging document shows that Francisco obtained a stolen laptop. Francisco then contacted the laptop’s owner and demanded that the owner reimburse him for the amount of money Francisco had paid for the laptop. During this exchange, Francisco sent the laptop’s owner sexually explicit pictures that Francisco had found on the 3 laptop. The owner then contacted the police and Francisco was arrested and charged with attempted second degree grand larceny. After pleading guilty, Francisco was sentenced to five years of probation. An order of protection for the victim was placed against him. Francisco completed his probation in 2017. In 2018, Francisco returned to Newark Liberty International Airport from a trip abroad and sought admission to the United States as a returning lawful permanent resident. Instead, Francisco was classified as ...
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