26 F.4th 129
2d Cir.2022Background:
- Andy Ferreiras, a lawful permanent resident since 2011, was convicted three times in 2017 of New York petit larceny (N.Y. Penal Law § 155.25).
- DHS initiated removal proceedings, charging Ferreiras as removable for having been convicted of two or more crimes involving moral turpitude (CIMTs), 8 U.S.C. § 1227(a)(2)(A)(ii).
- The BIA treated theft offenses as CIMTs only when the offender intended to deprive the owner either permanently or such that the owner’s property rights were substantially eroded, and found Ferreiras’s convictions to be CIMTs.
- Ferreiras argued New York law allows conviction where a defendant merely “disposes” of another’s property for benefit without the specific intent to permanently deprive or substantially erode the owner’s rights (N.Y. Penal Law § 155.00(4)(b)).
- The Second Circuit certified to the New York Court of Appeals the question whether “appropriate” under § 155.00(4)(b) requires intent to deprive permanently or substantially erode property rights; the New York Court of Appeals declined certification.
- On declination, the Second Circuit concluded that New York law requires such an intent for larceny, held petit larceny is categorically a CIMT under the BIA standard, and denied the petition for review.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NY petit larceny is categorically a CIMT because it requires intent to deprive permanently or to substantially erode the owner’s property rights | Ferreiras: NY statute permits conviction for mere "disposal" for benefit without intent to permanently deprive or substantially erode owner’s rights | Government/BIA: NY law should be read to require intent to deprive permanently or to substantially erode owner’s rights; theft offenses meeting that intent are CIMTs | Court: NY petit larceny requires intent to deprive permanently or to substantially erode property rights; thus it is categorically a CIMT and removal stands |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (categorical approach: compare statutory elements to federal removal categories)
- Mellouli v. Lynch, 575 U.S. 798 (look to statutory definition of offense; conviction, not conduct, controls)
- Mathis v. United States, 136 S. Ct. 2243 (predicate offense must qualify categorically in all cases or none)
- Descamps v. United States, 570 U.S. 254 (same categorical-rule principle and requirement of legal certainty)
- Taylor v. United States, 495 U.S. 575 (foundational categorical approach precedent)
- Wala v. Mukasey, 511 F.3d 102 (2d Cir. decision discussing theft-as-CIMT standard)
- People v. Jennings, 504 N.E.2d 1079 (N.Y. Court of Appeals requiring substantial erosion/permanent deprivation for larcenous intent)
- Obeya v. Holder, 884 F.3d 442 (2d Cir. discussion of BIA and theft intent standard)