ANDY PABEL FERREIRAS VELOZ, AKA ANDY FERREIRAS v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL
No. 19-4111
United States Court of Appeals For the Second Circuit
June 7, 2021
AUGUST TERM, 2020
ARGUED: NOVEMBER 23, 2020
Before: CALABRESI, KATZMANN, and SULLIVAN Circuit Judges.
* The Clerk of Court is directed to amend the caption as set forth above.
Petitioner Andy Ferreiras seeks review of a final order of removal from the Board of Immigration Appeals (“BIA“). The BIA found Petitioner removable as a non-citizen convicted of two or more crimes involving moral turpitude based on its determination that New York petit larceny constitutes such a crime. The Court of Appeals, (Calabresi, J.) certifies to the New York State Court of Appeals the question of whether an intent to “appropriate” property under New York Penal Law § 155.00(4)(b) requires an intent to deprive the owner of his or her property either permanently or under circumstances where the owner‘s property rights are substantially eroded.
Judge Sullivan dissents in a separate opinion.
ADAM AMIR & NOAH A. LEVINE, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Petitioner.
ETHAN P. DAVIS, Acting Assistant Attorney General – Civil Division (Cindy S. Ferrier, Assistant Director, Sarai M. Aldana, Trial Attorney, Office of Immigration Litigation, Civil Division, Department of Justice), Washington, D.C., for Respondent-Appellee.
This case requires us to determine whether the intent provision of New York‘s larceny statute is a categorical match with the Board of Immigration Appeals (“BIA“) definition of the intent required for crimes involving moral turpitude (“CIMTs“) under
Since 2016, the BIA has defined a theft crime as a CIMT when it includes the intent to deprive owners of their property “either permanently or under circumstances where the owner‘s property rights are substantially eroded.” Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847, 853 (BIA 2016). Using the categorical approach in Petitioner Ferreiras‘s case, the BIA ruled that the intent requirement for larceny in New York Penal Law (“NYPL“) is a categorical match with the BIA‘s CIMT definition.
Ferreiras argues that this was error. Under New York law, larceny requires the intent either to “deprive” someone of their property or to “appropriate” the property of another.
We do not doubt that the Diaz-Lizarraga rule applies to Ferreiras. We have, however, left open the question of whether New York petit larceny constitutes a CIMT under that standard. See Obeya v. Sessions, 884 F.3d 442, 445 n.1 (2d Cir. 2018). The BIA has said that it does. See Matter of Obeya, 26 I & N Dec. 856 (BIA 2016). But we owe no deference to the BIA‘s reading of New York law. See Gill v. I.N.S., 420 F.3d 82, 89 (2d Cir. 2005). The issue before us is therefore: what does the New York statute require, and does reading the statute or the relevant New York cases make us sufficiently sure of that requirement?
Since examination of that statute and those cases leaves us uncertain, we believe it is prudent to ask the New York State Court of Appeals (“NYCA“) how it would interpret
BACKGROUND
Andy Ferreiras is a native and citizen of the Dominican Republic who became a lawful permanent resident of the United States in 2011. Before he was detained by the Department of Homeland Security (“DHS“), he worked in the restaurant industry and as a barber in the Bronx. In 2017, Ferreiras pleaded guilty to three separate charges of petit larceny under
Ferreiras timely petitioned for review before our Court.1 He argues again that New York petit larceny is not a CIMT under the categorical approach because its plain language encompasses thefts with less culpable intent than the Diaz-Lizarraga rule requires.
STANDARD OF REVIEW
Our jurisdiction over Ferreiras‘s petition for review is limited to “constitutional claims or questions of law.”
DISCUSSION
Finding a categorical match is a tricky business. We must determine whether state law permits convictions for crimes that would not be CIMTs under the appropriate federal definition. See Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (explaining the categorical approach); Matthews v. Barr, 927 F.3d 606, 616-617 (2d Cir. 2019) (applying categorical approach to New York‘s child endangerment law). We therefore begin with the federal definition. In that respect, we pay due deference to the BIA‘s delegated authority to define a CIMT, and its expertise in doing so. See Gill 420 F.3d at 89 (“Because the BIA has expertise applying and construing immigration law, we afford Chevron deference to its construction of undefined statutory terms such as ‘moral turpitude.‘“). As recited above, the BIA defines a theft as a CIMT where it involves “an intent to deprive the owner of his property either permanently or under circumstances where the owner‘s property rights are substantially eroded.” Diaz-Lizarraga, 26 I. & N. Dec. at 853.
But we do not owe the BIA deference when it interprets state law, because it is not an expert in state law.2 See Mendez v. Mukasey, 547 F.3d 345, 346 (2d Cir. 2008) (“[W]e owe no deference to the BIA‘s construction of state criminal statutes.“); Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006). Instead, we give full deference to the state. See e.g., Gill, 420 F.3d at 90 (relying on New York state
court interpretation of its own criminal laws when applying the categorical approach to CIMTs).
This core principle of federalism is especially important in situations like this one, where the need to ascertain state law is required by federal law, and where litigants who are incarcerated or have been deported may be able to seek a reopening of their case even many years later should our decision as to state law prove to be wrong. Consider what might happen if we found that the statute is a match, and a few years later the NYCA defined it as clearly not a match. What would happen if a petitioner then sought habeas or similar relief? Certification allows us to avoid precisely such potential problems.
In order to apply the categorical approach, we must “‘identify the minimum criminal conduct necessary for conviction under a particular statute by looking only to the statutory definitions—i.e., the elements—of the offense, and not to the particular underlying facts.‘” Hylton v. Sessions, 897 F.3d 57, 60 (2d Cir. 2018) (quoting United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018)). Our inquiry therefore begins with the statute and its plain language.
Under New York penal law, “[a] person is guilty of petit larceny when he steals property.”
Thus,
Ferreiras contends, moreover, that the intent requirement in the larceny statute is so manifestly broader than the Diaz-Lizarraga rule that we need not, and indeed cannot, look any further. In making this argument, he relies principally on Hylton, where we held that the BIA erred in looking beyond the clear language of a statute “when the statutory language itself, rather than the application of legal imagination to that language, creates the realistic probability that a state would apply the statute to conduct beyond the generic definition.” 897 F.3d at 63 (citations omitted). We are however, not persuaded that the meaning of this statute is so plain that we can simply rely on its language.
What the statute makes criminal depends on the meaning of “dispose” in
Some thirty-five years ago, in People v. Jennings, the NYCA said, “[t]he mens rea element of larceny . . . is simply not satisfied by an intent temporarily to use property without the owner‘s permission, or even an intent to appropriate outright the benefits of the property‘s short-term use.” 69 N.Y.2d 103, 119 (1986); accord People v. Jensen, 86 N.Y.2d 248, 252 (1995) (“The intent to ‘deprive’ or ‘appropriate’ prescribed in section 155.05 is satisfied by the exertion of permanent or virtually permanent control over the property taken.“) (internal quotations omitted). The NYCA seemed to reinforce that principle more recently in People v. Medina, which found the exclusion of the definitions of “deprive” and “appropriate” from a jury charge to be reversible error in part because the jury might have been misled into “thinking that any withholding, permanent or temporary, constituted larceny.” 18 N.Y.3d 98, 105 (2011).
On the other hand, as Ferreiras argues, those cases concerned
Turning to New York‘s lower courts does not clarify the issue. Several cases seem to support the government‘s position. For example, in People v. Brigante the
But we also find some possible support for Ferreiras‘s position in the lower courts of New York. In In re Reinaldo O., the Appellate Division interpreted
Given these New York cases, if certification were not available, we would likely hold that
We believe, however, that the NYCA should have the last word on this issue, and for that reason, certify the question.4 We are not suggesting that the NYCA should answer us, but only asking it to speak if it wishes.5 In this respect, we
CONCLUSION
Because we believe it appropriate to give the NYCA a chance to speak to the meaning of
Does an intent to “appropriate” property under
New York Penal Law § 155.00(4)(b) require an intent to deprive the owner of his or her property either permanently or under circumstances where the owner‘s property rights are substantially eroded?
As always, if the NYCA accepts certification, we invite it to address any other issues involving New York law as it relates to the instant case. This panel will retain jurisdiction following the response of the New York State Court of Appeals.
It is therefore ORDERED that the Clerk of this Court transmit to the Clerk of the Court of Appeals of the State of New York a Certificate, as set forth below, together with complete sets of briefs and appendices, and the records filed in this Court by the parties.
CERTIFICATE
The foregoing is hereby certified to the Court of Appeals of New York pursuant to Second Circuit Local Rule 27.2 and New York Codes, Rules, and Regulations Title 22, § 500.27(a), as ordered by the United States Court of Appeals for the Second Circuit.
ANDY PABEL FERREIRAS VELOZ, AKA ANDY FERREIRAS v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL
No. 19-4111
United States Court of Appeals For the Second Circuit
June 7, 2021
RICHARD J. SULLIVAN, Circuit Judge, dissenting:
I disagree with the majority‘s decision to certify a question concerning
I agree with the majority on the basic facts and general legal framework. In 2011, Andy Ferreiras, who is a citizen of the Dominican Republic, became a lawful permanent resident of the United States. He turned to crime sometime later and pleaded guilty in 2017 to three charges of petit larceny under
Larceny is a crime of moral turpitude only if it requires “an intent to deprive the owner of his property either permanently or under circumstances where the owner‘s property rights are substantially eroded.” Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847, 853 (BIA 2016). So our task here is to determine whether the intent required under New York‘s larceny statute, as interpreted
From my perspective, that is a question we could answer for ourselves, without resorting to the “exceptional procedure” of certification. McGrath v. Toys “R” Us, Inc., 356 F.3d 246, 250 (2d Cir. 2004). In the mine-run of cases, certification is simply unnecessary because federal courts are competent to apply state law. See McKesson v. Doe, 141 S. Ct. 48, 51 (2020) (“Our system of cooperative judicial federalism presumes federal and state courts alike are competent to apply federal and state law.” (internal quotation marks omitted)). Indeed, we certify questions only when, after consulting the relevant statute‘s text and the state‘s binding precedent, we conclude that “state law is so uncertain that we can make no reasonable prediction” about how the state‘s highest court would decide the question. DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir. 2005); see also 17A Charles A. Wright et al., Federal Practice & Procedure § 4248 (3d ed. 2007) (“Questions ought not be certified if the answer is reasonably clear.“).
Here, both the text of the larceny statute and controlling New York case law leave no doubt that larceny under New York law requires the same culpable mental state as a crime involving moral turpitude. Under New York law, a person is guilty of petit larceny only if he steals property with the intent to “deprive another of property” or the intent “to appropriate the same to himself or to a third person.”
Where the majority and I disagree, however, is over the second half of the definition of “appropriate.” The majority opinion suggests that the statute‘s use of the term “dispose of the property” may criminalize larceny where the thief merely intends to steal property for a brief duration; but that contorted reading stretches the statutory terms beyond recognition. To “dispose of” plainly means “[t]o transfer or part with, as by giving or selling” or “[t]o get rid of; throw out or away.” The American Heritage Dictionary of the English Language (1969); see Ballentine‘s Law Dictionary (3d ed. 1969) (“To alienate, sell, or transfer.“); New Oxford American Dictionary (3d ed. 2010) (“get rid of by throwing
This is how related statutory provisions use the term. In fact, under the same statutory title on crimes involving theft,
Any doubt on this score has already been eliminated by the New York Court of Appeals, which has consistently made clear that “[t]he mens rea element of larceny . . . is simply not satisfied by an intent temporarily to use property without the owner‘s permission, or even an intent to appropriate outright the benefits of the property‘s short-term use.” People v. Jennings, 69 N.Y.2d 103, 119 (1986); see People v. Jensen, 86 N.Y.2d 248, 252 (1995) (“The intent to ‘deprive’ or ‘appropriate’
prescribed in section 155.05 is satisfied by the exertion of permanent or virtually permanent control over the property taken.” (internal quotation marks omitted)). Applying this rule, the Court of Appeals held in People v. Medina that a trial court committed reversible error when it failed to instruct the jury on the statutory definitions of “appropriate” and/or “deprive,” thus potentially misleading the jury into thinking that those terms covered “any withholding, permanent or temporary.” 18 N.Y.3d 98, 105 (2011). In unmistakable language, the court went on to find that “the concepts of ‘deprive’ and ‘appropriate,‘” which are “essential to a definition of larcenous intent,” “connote a purpose to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner.” Id. (some internal quotation marks, emphasis, and punctuation omitted).
The majority here nevertheless concludes that these opinions “are not necessarily determinative” because, as the majority sees it, the state cases addressed only the first half of the statutory definition of “appropriate” in § 155.00(4)(a), rather than the “disposed of” language in subdivision (4)(b) of the definition. But the Jensen case did not even specifically refer to
Therefore, both the larceny statute and New York‘s case law show that larceny has as an element the intent to assume “permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner.” Id. That element clearly entails the intent to “substantially erode[]” property rights, and thus aligns with the federal definition of a crime involving moral turpitude. Matter of Diaz-Lizarraga, 26 I. & N. Dec. at 853.
“It would be manifestly inappropriate to certify a question in a case where, as here, there is no uncertain question of state law whose resolution might affect the pending federal claim.” City of Houston v. Hill, 482 U.S. 451, 471 (1987). In opting to certify this straightforward case anyway, the majority shifts our burden to interpret state law onto a court that is equally burdened, all while increasing the litigation costs for parties who never requested certification in the first place. See McKesson, 141 S. Ct. at 51; McCarthy v. Olin Corp., 119 F.3d 148, 153 (2d Cir. 1997).
I would not take this unnecessary procedural step, and instead would decide this case as we have done numerous times before – by looking to the relevant statute and clearly established law from the state‘s highest court. And because Ferreiras‘s offenses qualify as crimes of moral turpitude, I would deny his petition for review. Accordingly, I respectfully dissent.