19-4111 Ferreiras Veloz 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: JUNE 7, 2021 9 10 No. 19-4111 11 12 ANDY PABEL FERREIRAS VELOZ, AKA ANDY FERREIRAS, 13 Petitioner, 14 15 v. 16 17 MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, 18 Respondent. * 19 20 ________ 21 22 On Petition for Review of a Final Decision of the Board of Immigration Appeals. 23 24 No. A061-308-478. 25 26 ________ 27 28 Before: CALABRESI, KATZMANN, and SULLIVAN Circuit Judges. 29 ________ * The Clerk of Court is directed to amend the caption as set forth above. 19-4111 Ferreiras Veloz v. Garland 1 Petitioner Andy Ferreiras seeks review of a final order of removal from the 2 Board of Immigration Appeals (“BIA”). The BIA found Petitioner removable as a 3 non-citizen convicted of two or more crimes involving moral turpitude based on 4 its determination that New York petit larceny constitutes such a crime. The Court 5 of Appeals, (Calabresi, J.) certifies to the New York State Court of Appeals the 6 question of whether an intent to “appropriate” property under New York Penal 7 Law § 155.00(4)(b) requires an intent to deprive the owner of his or her property 8 either permanently or under circumstances where the owner’s property rights are 9 substantially eroded. 10 Judge Sullivan dissents in a separate opinion. 11 12 ADAM AMIR & NOAH A. LEVINE, Wilmer Cutler Pickering Hale and Dorr 13 LLP, New York, NY, for Petitioner. 14 ETHAN P. DAVIS, Acting Assistant Attorney General – Civil Division 15 (Cindy S. Ferrier, Assistant Director, Sarai M. Aldana, Trial Attorney, 16 Office of Immigration Litigation, Civil Division, Department of 17 Justice), Washington, D.C., for Respondent-Appellee. 18 2 19-4111 Ferreiras Veloz v. Garland 1 CALABRESI, Circuit Judge: 2 This case requires us to determine whether the intent provision of New 3 York’s larceny statute is a categorical match with the Board of Immigration 4 Appeals (“BIA”) definition of the intent required for crimes involving moral 5 turpitude (“CIMTs”) under 8 U.S.C. § 1227(a)(2)(A)(ii). Petitioner Andy Ferreiras 6 seeks review of a BIA order finding him removable based on convictions for three 7 CIMTs. Ferreiras argues that none of his crimes of conviction, all three of which 8 were for petit larceny, are CIMTs. He contends that the New York statute 9 encompasses a broader set of larcenous intents than the BIA’s definition of CIMTs. 10 Since 2016, the BIA has defined a theft crime as a CIMT when it includes the 11 intent to deprive owners of their property “either permanently or under 12 circumstances where the owner's property rights are substantially eroded.” Matter 13 of Diaz-Lizarraga, 26 I. & N. Dec. 847, 853 (BIA 2016). Using the categorical 14 approach in Petitioner Ferreiras’s case, the BIA ruled that the intent requirement 15 for larceny in New York Penal Law (“NYPL”) is a categorical …
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