On November 16, 2016, following its immediately prior precedent decision, the Board of Immigration Appeals (BIA or Board) applied that case (published as a companion opinion) and again revisited its holdings on the requisite intent for larceny crimes in the context of a crime involving moral turpitude (CIMT).
In an analysis similar to that in its prior opinion, the BIA initially noted that, per INA §237(a)(2)(A)(i), one is removable if he is convicted of a CIMT within 5 years of admission where a sentence of a year or more may be imposed. The Board also mentioned that it has long held that a theft offense is only a CIMT if “it is committed with the intent to permanently deprive the owner of property.” The opinion next raised the point that it was free to apply the holding in the companion decision, Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), and revisit the precedent cases that concerned the requisite intent of larceny-based CIMTs.
The BIA next cited to Diaz-Lizarraga’s holding that a particular theft offense may be a categorical CIMT where the statute requires an intent to deprive the owner of property either permanently or under circumstances where the owner’s property rights are severely diminished – which it termed “a mainstream, contemporary understanding of theft” – and found that New York Penal Law §155.25 (petit larceny) requires an intent to “deprive” but can also be violated by an intent to “appropriate” property. Holding that New York’s definition of “appropriate” would likely require “a showing of a permanent deprivation or substantial erosion of property rights”, as found in the companion case, the Board noted that New York courts have long held that larceny “requires proof of intent to permanently or virtually permanently” appropriate property or deprive the owner of same.
Thus, applying Diaz-Lizarraga, the BIA concluded that the instant offense requires an intent to deprive an owner of property permanently or under circumstances which substantially erode the owner’s rights and is therefore a CIMT and dismissed the appeal. Matter of Obeya, 26 I&N Dec. 856 (BIA 2016).
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