999 F.3d 798
2d Cir.2021Background
- Petitioner Andy Ferreiras, a lawful permanent resident, pleaded guilty in 2017 to three counts of petit larceny under N.Y. Penal Law § 155.25 and was found removable as having multiple "crimes involving moral turpitude" (CIMTs) under 8 U.S.C. § 1227(a)(2)(A)(ii).
- The BIA has defined a theft-based CIMT as requiring an intent to deprive the owner either permanently or in circumstances where the owner’s property rights are substantially eroded (Matter of Diaz‑Lizarraga).
- Ferreiras argues NYPL § 155.00(4)(b)’s use of the term "dispose" (within the statutory definition of "appropriate") lacks an explicit temporal limitation and therefore criminalizes temporary takings (e.g., joyriding), making the statute broader than the BIA definition and not a categorical match.
- The Second Circuit majority found the plain statutory language ambiguous as to whether "dispose" implies permanence and concluded state case law did not unambiguously resolve that question for § 155.00(4)(b).
- Because of that uncertainty and federalism concerns, the majority certified the single question—whether "appropriate" under NYPL § 155.00(4)(b) requires intent to deprive permanently or substantially erode property rights—to the New York Court of Appeals; the panel noted it would likely hold the statute does conform if the NYCA declines certification.
- Judge Sullivan dissented, arguing New York statutory text and controlling NY Court of Appeals decisions (Jennings, Jensen, Medina) already make clear larceny requires permanent or virtually permanent deprivation, so certification was unnecessary and Ferreiras’s petition should be denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an intent to "appropriate" under NYPL § 155.00(4)(b) requires an intent to deprive the owner permanently or such that the owner’s property rights are substantially eroded (i.e., categorical match to BIA theft‑CIMT definition). | Ferreiras: "Dispose" has no temporal limit; statute criminalizes temporary takings (broader than BIA rule). | Government/BIA: NY statute and New York precedents require permanent or virtually permanent control; statute aligns with BIA definition. | Court: State law ambiguous as applied to § 155.00(4)(b); certified the question to the NY Court of Appeals; signaled it would likely find a match if NYCA declines. |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (establishes the categorical approach to matching state crimes to federal immigration definitions)
- Hylton v. Sessions, 897 F.3d 57 (2d Cir. 2018) (applies categorical approach; looks only to statutory elements)
- Gill v. I.N.S., 420 F.3d 82 (2d Cir. 2005) (affirms deference to BIA on immigration law but not on state‑law interpretation)
- Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018) (discusses whether NY petit larceny is a CIMT; Court previously left question open)
- People v. Jennings, 69 N.Y.2d 103 (N.Y. 1986) (holds mens rea for larceny excludes mere temporary use; intent must be permanent or virtually permanent)
- People v. Jensen, 86 N.Y.2d 248 (N.Y. 1995) (reinforces that "deprive"/"appropriate" requires permanent or virtually permanent control)
- People v. Medina, 18 N.Y.3d 98 (N.Y. 2011) (reversible error where jury charge omitted statutory definitions because jury might think temporary withholding suffices)
- State v. Wieler, 660 A.2d 740 (Conn. 1995) (interpreting an identical provision in Connecticut as not requiring permanent deprivation)