Obeya v. Holder
572 F. App'x 34
2d Cir.2014Background
- Petitioner Clement Obeya, a Nigerian national, was found removable by an IJ for conviction of a crime involving moral turpitude (CIMT) under 8 U.S.C. § 1227(a)(2)(A)(i) based on New York petit larceny (NYPL § 155.25).
- The IJ concluded that any larceny/theft offense qualifies as a CIMT; Obeya did not explicitly challenge that legal conclusion below.
- The BIA affirmed the IJ’s decision in broad language, stating no clear error in the IJ’s determination that removability was established.
- Obeya sought review in the Second Circuit, arguing his NY petit larceny conviction is not a CIMT because larceny is a CIMT only when a permanent taking is intended.
- The Second Circuit found the IJ misstated governing law regarding when larceny constitutes a CIMT and deemed the issue exhausted despite Obeya’s limited below-challenge, because the BIA addressed the matter.
- The Court granted the petition for review and remanded to the BIA to determine in the first instance whether Obeya’s NYPL § 155.25 conviction constitutes a CIMT.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Obeya’s NY petit larceny conviction is a CIMT | Obeya: petit larceny is not a CIMT unless statute requires intent to permanently deprive | Government: larceny/theft offenses generally constitute CIMTs | Court: IJ erred; remand to BIA to determine whether the NY statute requires permanent taking intent |
| Whether the Court may consider the CIMT issue though not expressly raised below | Obeya: BIA’s broad affirmance permits exhaustion | Government: relied on IJ’s findings below | Court: issue deemed exhausted because BIA addressed it; may be reviewed |
| Whether an IJ can rely on counsel’s legal concession to find removability | Obeya: IJ relied on incorrect legal rule | Government: counsel’s concessions may be binding | Court: IJ may not rest on an erroneous concession of law; must apply correct legal standard |
| Whether remand to BIA is appropriate for statutory divisibility/CIMT analysis | Obeya: BIA should decide CIMT application in first instance | Government: Court could resolve | Court: remand appropriate and prudent for BIA to decide first |
Key Cases Cited
- Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. 2008) (BIA treatment of arguments can allow exhaustion where issue was addressed on review)
- Waldron v. INS, 17 F.3d 511 (2d Cir. 1994) (same principle regarding exhaustion when BIA addresses an argument)
- Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009) (counsel may stipulate facts but courts have not allowed legal concessions to override correct law)
- Wala v. Mukasey, 511 F.3d 102 (2d Cir. 2007) (larceny is a CIMT only when a permanent taking is intended)
- James v. Mukasey, 522 F.3d 250 (2d Cir. 2008) (remanding to BIA to determine divisibility of statute is the prudent course)