Obeya v. Holder , 572 F. App'x 34 ( 2014 )

12-3276
Obeya v. Holder
BIA
Connelly, IJ
A055 579 757
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 10th day of July, two thousand fourteen.
PRESENT:
Rosemary S. Pooler,
Peter W. Hall,
Susan L. Carney,
Circuit Judges.
_____________________________________
CLEMENT OBEYA,
Petitioner,
v. 12-3276
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Richard Mark, Samantha Hong, Gibson,
Dunn & Crutcher LLP, New York, New
York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General, Eric W. Marsteller, Senior
Litigation Counsel, Elizabeth D.
Kurlan, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is GRANTED.
Clement Obeya, a native and citizen of Nigeria, seeks
review of an August 7, 2012 decision of the BIA affirming
the March 13, 2012 decision of Immigration Judge (“IJ”)
Steven J. Connelly, finding him removable under 8 U.S.C.
§ 1227(a)(2)(A)(i) based on his conviction for a crime
involving moral turpitude (“CIMT”) within five years of his
admission into the United States. In re Clement Obeya, No.
A055 579 757 (B.I.A. Aug. 7, 2012), aff’g No. A055 579 757
(Immig. Ct. Batavia Mar. 13, 2012). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Obeya argues that his conviction under New York’s petit
larceny statute, New York Penal Law (“NYPL”) § 155.25, does
not constitute a crime involving moral turpitude. Although
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Obeya did not expressly challenge the IJ’s ruling on this
issue below, the BIA, in broad language, “f[ound] no clear
error in the [IJ’s] determination that the Department of
Homeland Security . . . established the respondent’s
removability by clear and convincing evidence.” App’x at 3.
Where, as here, the BIA’s sweeping language affirms an IJ’s
misstatement of law, and a petitioner seeks to challenge
that misstatement, we deem the issue exhausted. See
Ruiz-Martinez v. Mukasey, 516 F.3d 102, 112 n.7 (2d Cir.
2008) (explaining that an argument not otherwise raised
below may be considered exhausted if addressed by the BIA);
Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1994).
Although precedent allows counsel to stipulate or
concede facts, see Hoodho v. Holder, 558 F.3d 184, 188, 190-
92 (2d Cir. 2009), we have never held that an IJ may rely on
an erroneous concession of law. In finding Obeya removable,
the IJ held that “any type of larceny or theft offense under
the [i]mmigration laws constitutes a crime involving moral
turpitude.” App’x at 25-26. The IJ erred in so holding
because, as we have observed, under BIA precedent larceny
constitutes a CIMT “‘only when a permanent taking is
intended.’” Wala v. Mukasey, 511 F.3d 102, 106 (2d Cir.
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2007) (quoting Matter of Grazley, 14 I. & N. Dec. 330, 333
(B.I.A. 1973)). Therefore, we remand for the BIA to
determine in the first instance whether Obeya’s conviction
under NYPL § 155.25 constitutes a CIMT. See James v.
Mukasey, 522 F.3d 250, 256 (2d Cir. 2008) (remanding for the
BIA to determine the divisibility of a statute of
conviction, even though the Court was not “clearly required”
to do so, as the “wiser and more prudent course”).
For the foregoing reasons, the petition for review is
GRANTED, and the case REMANDED to the BIA for further
proceedings. As we have completed our review, the stay of
removal that the Court previously granted in this petition
is VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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