Obeya v. Sessions


16-3922-ag Obeya v. Sessions UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2017 (Argued: October 30, 2017 Decided: March 8, 2018) Docket No. 16-3922-ag CLEMENT OBEYA, Petitioner, — v. — JEFFERSON B. SESSIONS III, United States Attorney General, Respondent. B e f o r e: LYNCH and CARNEY, Circuit Judges, and HELLERSTEIN, District Judge.* Clement Obeya, a lawful permanent resident of the United States, was convicted of petit larceny under New York law. The government sought to remove Obeya for his conviction, treating it as a “crime involving moral * Judge Alvin K. Hellerstein, of the United States District Court for the Southern District of New York, sitting by designation. turpitude.” The Immigration Judge and Board of Immigration Appeals found that Obeya was removable based on his conviction, but this Court remanded due to the agency’s failure to apply BIA precedent holding that larceny involves moral turpitude only when it is committed with the intent to deprive the owner of property permanently. On remand, the BIA again found Obeya removable, holding that his offense involved moral turpitude by applying a new rule, announced in another case that same day, expanding the types of larceny that qualify as such crimes. Obeya challenges the BIA’s retroactive application of that rule to his case. We GRANT review and REVERSE the BIA’s order. RICHARD MARK, Gibson, Dunn & Crutcher LLP, New York, NY, for Petitioner. RACHEL L. BROWNING , Trial Attorney (Claire L. Workman, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, for Chad A. Readler, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC, for Respondent. Andrew Wachtenheim, Immigrant Defense Project, New York, NY, for Amicus Curiae Immigrant Defense Project. GERARD E. LYNCH, Circuit Judge: Clement Obeya is a lawful permanent resident of the United States. In 2008, he was convicted of petit larceny under New York law. The government initiated removal proceedings against Obeya, charging that his conviction constituted a “crime involving moral turpitude.” The Immigration Judge (“IJ”) found that Obeya was removable based on his conviction and the Board of 2 Immigration Appeals (“BIA”) affirmed, but this Court held that the IJ had failed to apply BIA precedent holding that larceny involves moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i) only when committed with the intent to deprive the owner of property permanently. See Obeya v. Holder, 572 F. App’x 34 (2d Cir. 2014) (“Obeya I”), granting pet. for review of Matter of Obeya, No. A055 579 757 (B.I.A. Aug. 7, 2012). We therefore remanded to the BIA “to determine in the first instance whether Obeya’s conviction under [N.Y. Penal Law § 155.25]” rendered him removable. Obeya I, 572 F. App’x at 35. On remand, the BIA again found Obeya removable. See Matter of Obeya, 26 I. & N. Dec. 856 (B.I.A. 2016) (“Obeya II”), aff’g No. A055 579 757 (Immig. Ct. Batavia Mar. 13, 2012). But the BIA did not rely in Obeya II on the precedent that this Court had identified ...

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